A Hindu Marriage Is Not To Be Dissolved Or Terminated As A Contract: Allahabad High Court

The Allahabad High Court remarked that a Hindu marriage is not to be dissolved or terminated as a Contract.

The Court was deciding a first appeal filed by the wife under Section 28 of the Hindu Marriage Act, 1955 (HMA) against the judgment of the Additional District Judge by which the marriage was dissolved between the parties at the instance of the husband.

A Division Bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh observed, “It requires no elaboration that a Hindu marriage is not to be dissolved or terminated as a contract. The sacrament based Hindu marriage may be dissolved (in law), in limited circumstances. In the first place, a Hindu marriage may be declared void on an allegation of impotency suffered by either spouse only on the strength of evidence led. To that extent the learned court below has completely ignored that such ground pressed in the plaint, was not proven.”

Advocate Mahesh Sharma represented the appellant/wife while Advocate A.N. Pandey represented the respondent/husband.

Facts of the Case -

The appeal remained pending for 13 years. The parties were married in 2006 and at that time, the respondent/husband was employed with the Indian Army. According to the plaint allegations, the appellant/wife deserted her husband in 2007. In 2008, the husband instituted the divorce suit, primarily on the ground of infertility suffered by the wife. On such a suit being filed, a Written Statement was filed by the wife. The matter was referred to mediation by the Court and the same remained pending for 2 years. Thereafter, in 2010, the wife filed another/second Written Statement. Further mediation was conducted and in her oral statement, the wife referred to another/third mediation conducted between her and the husband, before the army authorities.

Besides that, the wife also filed certain documents to establish - neither she suffered from infertility nor it was true that no children were born to the parties. Her oral statement and documents on record indicated that she twice conceived and two children were born to her. Thus, she sought to contest the divorce proceedings on the strength of her second Written Statement and evidence led by her. The District Court decreed the divorce suit, by which the marriage was dissolved between the parties.

The High Court in view of the facts and circumstances of the case, noted, “… by way of a guiding principle, the learned Court below should have examined and verified, on 30.03.2011, if the consent of the appellant (as noted by it on the strength of the first Written Statement filed on 01.04.2008 and as recorded before the Mediator on 25.04.2008), continued to exist without any change of mind made by the parties.”

The Court said that, in granting the divorce on the strength of mutual consent, the Court below may have dissolved the marriage between the parties only in the event of that consent continuing to exist on the date of the order being passed.

“Once the appellant claimed to have withdrawn her consent and that fact was on the record, it never became open to the learned court below to act on that (withdrawn) consent, belatedly. In any case, it never became open to the learned court below to force the appellant to abide by the original consent given by her that too almost three years later. To do that would be travesty of justice. Here, it may be noted, no money was paid to the appellant by way of permanent alimony etc., in lieu of her consent”, it added.

Furthermore, the Court noted that even if these were Section 13-B proceedings, the Court below could not have ignored the statutory principle enshrined therein – that other thing apart, free consent to dissolve the marriage must not only arise at the stage of first motion of a proceeding under Section 13-B of the Act but it must survive and sustain at the stage of second motion.

“… the learned court below may presume that the consent may not continue to exist after expiry of 18 months from the date of it being given, unless the party giving such consent specifically maintains it, after expiry of eighteen months period”, it enunciated.

The Court also observed that the Court below ought to have examined the case holistically and that the divorce suit having been instituted in the year 2008 and it having remained pending for three years, an over simplistic approach has been adopted-in relying only on the bald (first) Written Statement filed by the appellant, and the consent as recorded in the proceedings before the mediation centre attached to the Court below while ignoring subsequent developments brought on record.

“We may have attempted to help the parties to resolve their dispute at this stage. However, since respondent had not appeared, that course is not available to us. … Seen in that light, the impugned judgement and order dated 30.03.2011 and the consequential decree cannot stand. Those are set aside. Matter is remitted to the learned court below to proceed in accordance with law. If no mediation may arise or be successful, necessarily the appellant may be allowed to rely on the second Written Statement in terms of later part of Order VIII Rule 9 of the C.P.C., with corresponding right to the respondent to file Replication Statement”, it directed.

Accordingly, the High Court allowed the appeal.

Cause Title- ABC v. XYZ (Neutral Citation: 2024:AHC:145278-DB)

Appearance:

Appellant: Advocates Mahesh Sharma, Uma Nath Pandey, and Vinod Sinha.

Respondent: Advocates A.N. Pandey, D.R. Kushwaha, Manish C. Tiwari, and Rajesh Kumar Dubey.

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