RACHNA BHADRA Vs. ARUN BHADRA

JUDGEMENT

(1.) THIS is an appeal challenging the order dated 3 rd October, 2011 passed by the learned Principal Judge, Family Court, Dwarka in SMA Case No.2/2011.

(2.) THE relevant facts for the disposal of the present appeal are as under:- A petition u/s 28(1) of Special Marriage Act, 1954 (hereinafter referred to as 'the Act') was filed by the appellant as well as respondent stating therein they got married to each other on 19th December, 1992 and their marriage was registered under Section 13 of the Act. After marriage, they lived together as husband and wife and a female child, namely, Roshni was born from their wedlock, who is presently of 17 years of age. On 6th July, 2011, parties had filed a divorce petition seeking dissolution of their marriage by a decree of divorce which was registered as SMA 18/2011 before the Family Court at Saket Courts. THE said divorce petition was dismissed as withdrawn and liberty was given to them to file fresh petition before appropriate court having territorial jurisdiction. THEreafter, the parties filed fresh petition i.e., SMA 2/2011 under section 28(1) of the Act before the Family Court at Dwarka seeking dissolution of their marriage by a decree of divorce by mutual consent. Parties had stated therein that they are living under the same roof for more than 18 years but they could not reconcile their differences and they have decided to dissolve their marriage by mutual consent. THEy had also stated that for the past five years they have not cohabited despite living under the same roof. THE Ld.Principal Judge, Family court, Dwarka dismissed the petition on the ground that the parties have stated in the petition they have not cohabited under the same roof for the last five years, but there is possibility that they could have cohabited at some other place. THE learned Principal Judge also noted that appellant/wife is still the nominee in ULIP which stands in the name of respondent/husband. Accordingly, the petition was dismissed by holding that the parties are still performing their marital obligation towards each other and have also not contended that they did not cohabit as husband and wife at all since the last five years. Aggrieved with the same, present appeal is filed.

(3.) THE requirement under Section 28 of the Act are as under:-