Anchal vs Arpit

The petitioner/wife has filed the persent revision petition against the order dated 01.12.2017 by which application under Order 7 Rule 11 of the CPC has been rejected by the Principal Judge of Family Court, Dhar.

The marriage between the petitioner and the respondent was solemnized on 27.05.2013 and out of which the petitioner gave birth to the baby girl.

After the marriage, the dispute arose between them and they started living separately. The respondent filed the petition under Section 13(1)(i-a) & (iii) of the Hindu Marriage Act seeking divorce against the petitioner. The petitioner sought divorce on the ground of cruelty as well as on the ground that she is suffering from mental disorder.

After notice, the present petitioner filed an application under Order 7 Rule 11 of the CPC seeking dismissal of the petition as no cause of action accrued for filing the petition under Section 13(1)(i-b) of the Hindu Marriage Act. According to the petitioner, she lived with the respondent from 27.05.2013 to 19.06.2016 and during this period due to cohabitation she gave birth to the daughter on 27.05.2013 who is aged about 1 year.

Accordingly, as per Section 13(1)(i-b) of the Hindu Marriage Act there has to be two years separation in order to seek the decree of divorce.

Learned Family Judge by order 01.12.2017 has rejected the application on the ground that the respondent is seeking divorce on Section 13(1)(i-a) also, readwith sub Section (iii) of the Hindu Marriage Act and for which there is no period prescribed, therefore, the application is liable to be dismissed, hence present petition before this Court.

I have heard learned counsel for the parties.

Section 13(1) & (2) of the Hindu Marriage Act, 1955 are reproduced below:

“13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of this 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 solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization 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]

(ii) has ceased to be a Hindu by conversion to another religion ; or]

(iii) has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation- In this clause-

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from veneral disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation.- In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.

(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground-

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition;

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;or

(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation.- This clause applies whether the marriage was solemnized” According to the aforesaid section, any marriage may on the petition presented either by wife or husband can be dissolved by a decree of divorce on the ground that the other party has treated the petitioner with cruelty and on the ground that she is suffering from mental disorder.

It is clear from the pleading of the petition, the respondent sought the decree of divorce under Section 13(1) (i-a), not under Section 13(1)(i-b) and for which there is no period prescribed. The period of two years is prescribed only if the petition is filed under Section 13(1)(i-b), therefore, application filed by the petitioner is absolutely misconcieved, hence, the trial Court has rightly rejected the same.

No case for interference is made out. Present civil revision is accordingly dismissed.