GEETA LUTHRA Vs. RAJESH RAINA

JUDGEMENT

(1.) Challenge in this appeal is to the order dated 22.02.2017 passed by the Family Court in a petition filed by the respondent/husband seeking dissolution of marriage under Section 13(1A)(ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'HMA') by which a decree of divorce has been granted.

(2.) The necessary facts which are required to be noticed for disposal of this appeal are that the marriage between the appellant/wife and the respondent/husband was solemnized on 23.04.2000 as per Hindu rites and ceremonies at New Delhi. Two children were born out of their wedlock. The first child was born on 26.02.2001, who is in the care and custody of the respondent/husband and the second child was born on 29.11.2004 who is in the care and custody of the appellant/mother. The parties have been residing separately since 22.07.2007. A petition under Section 9 of HMA seeking a decree for restitution of conjugal rights was instituted by the respondent/husband on 03.11.2007 which was allowed on 01.02.2011. After waiting for the statutory period of one year, the respondent/husband filed a petition under Section 13(1A)(ii) of the HMA seeking dissolution of marriage on 23.03.2012. The petition was allowed which has led to the filing of the present appeal.

(3.) Ms. Geeta Luthra, learned senior counsel for the appellant/wife submits that the learned Family Court has erred in passing the impugned order and has passed the same without application of judicial mind. It is contended that the Family Court has not read the pleadings as a whole and has passed the judgment and decree in haste. It is also contended that in the absence of any evidence having been led by the respondent/husband and having failed to discharge the onus cast upon him to prove his case the petition seeking decree of divorce should have been dismissed and accordingly the impugned order is liable to be dismissed. Counsel further submits that the Court had in fact committed a factual error which was admittedly not pointed out by counsel appearing for either of the parties and an issue was framed on 20.11.2013 which did not arise from the pleadings of the parties. It is submitted that post 20.11.2013 various opportunities were granted to the respondent/husband to lead evidence however despite repeated opportunities, the respondent/husband did not lead evidence. Thereafter, the appellant/wife was granted time to lead evidence. The counsel also submits that once the respondent/husband had failed to prove his case, the petition seeking divorce under Section 13(1A) (ii) of HMA should have been dismissed at that stage itself. Admittedly, the respondent/husband did not lead any evidence. Subsequently, on an application filed by the respondent/husband under Order 14 Rule 5 of CPC, the issue was amended and the earlier issue was in fact deleted. Thereafter, no opportunity was sought or granted by either of the parties to lead evidence and based on the admitted pleadings the Family Court has allowed the petition seeking divorce. Counsel further submits that the admission was neither categorical nor unequivocal. The pleadings were considered not as a whole and a judgment was passed. It is contended by Ms. Luthra, learned counsel for the appellant/wife that the proper course would have been that in the absence of any evidence, the petition of the respondent/husband should have been dismissed. Ms. Luthra, learned senior counsel has relied upon Hirachand Srinivas Managaonkar vs. Sunanda reported at (2001) 4 SCC 125 (paras 11); Captain B. R. Syal vs. Smt. Rama Syal reported at 1968 SCC On Line P&H 5, and Shridhar Dada Kate vs. Usha Shridhar Kate reported at 1987 MhLJ.81 (paras 7 and 9).