Court No. - 32
Case :- FIRST APPEAL No. - 70 of 2019
Appellant :- Narendra Bahadur Singh @ Babaloo Singh
Respondent :- Suman Singh
Counsel for Appellant :- Santosh Kumar Dubey
Hon'ble Shashi Kant Gupta,J. Hon'ble Pradeep Kumar Srivastava,J.
This appeal has been filed against the judgment and order dated 22.12.2018 passed by the Additional District Judge/Family Court, Bhadohi in Matrimonial Suit No. F127 of 2015 (Narendra Bahadur Singh & Babaloo Vs. Suman Singh), whereby the divorce petition of the appellant has been dismissed.
A perusal of the record shows that the marriage was solemnized between the appellant and the respondent about 19 years ago. The petition for divorce was filed on 6.7.2015 on the ground that the wife has deserted the appellant-husband on account of some dispute and went to her parents house and thereafter refused to come back to live with the husband. It has been mentioned in paragraph 6 of the plaint of the appellant that the wife of the appellant has deserted the appellant- husband one and a half years ago and the parties are neither having any relation of husband and wife between them nor there is any possibility of restitution of husband-wife relations in future between them. The court below after considering the oral and documentary evidence by the impugned order dated 22.12.2018 has dismissed the petition on the ground that the the divorce petition is barred by the provision of Section 13 (1) (ib) of the Hindu Marriage Act, 1955.
Learned counsel for the appellant has submitted that the appellant is living separately since more than 4 years from the date of presentation of the petition before the court below, as such, the court below has erred in dismissing the divorce petition on the ground that the divorce petition is barred by the provision of Section 13 (1) (ib) of the Hindu Marriage Act, 1955.
At this point, it would be fruitful to quote hereinbelow the Condition No. 4 of Section 13 (1) (ib) of the Hindu Marriage Act, 1955:-
"13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
[(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or] [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or] (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]"
A bare perusal of the aforesaid provision under Section 13 (1) (1b) of the Hindu Marriage Act reveals that any marriage solemnized whether before or after the commencement of the Hindu Marriage Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner (claimant) for a continuous period of not less than 2 years immediately preceding the presentation of the petition. Meaning thereby, a desertion is to be made by the other party against whom divorce is to be sought continuous for period of not less than 2 years preceding the presentation of the petition. In the present case, it is an admitted fact, according to petition filed for divorce, that the petitioner was not having any relation as husband and wife for the last only one and a half years, as such, the conditions provided under Section Section 13 (1) (ib) of the Hindu Marriage Act, 1955 is not satisfied.
In our opinion, the learned trial Court, after considering the pleadings of the plaint, has rightly came to the conclusion that condition of Section 13 (1) (ib) was not fulfilled, as such, the appellant was not entitled for obtaining a decree of divorce, therefore, the court below has rightly dismissed the suit for divorce for non-fulfilment of condition (ib) of Section 13 (1) of the Hindu Marriage Act. Thus, there is no illegality and infirmity in the impugned order.
In the result, the appeal is dismissed.
Order Date :- 24.1.2019 vinay