KANAK MANJARI KAR Vs. SUSANTA KUMAR DASH

JUDGEMENT

(1.) This appeal has been filed by the appellant-wife challenging the ex parte decree of divorce dated 25.7.2002 passed by the learned Judge, Family Court, Bhubaneswar in C.P No. 856 of 2011 under Section 13(1) of the Hindu Marriage Act, 1955. The facts leading to the present appeal are that the marriage between the appellant-wife and respondent-husband was solemnized on 05.5.1996 as per Hindu rites and customs at Bhubaneswar. Out of their wedlock they have blessed with a male child. As there was dissension between the parties, the respondent filed O.S No. 439 of 1996 before the learned Civil Judge (Senior Division), Bhubaneswar under Section 13 of the Hindu Marriage Act, 1955 alleging that the appellant behaved him in a peculiar manner few days after the marriage and she has disclosed that she was not interested to lead marital life as she had affairs with many persons. It was further stated that the appellant constrained to marry the respondent due to the pressure of her family members. The respondent also pleaded regarding the character of the appellant and that he persuaded her to maintain the conjugal life, however, the appellant continued with her own temperaments and wanted to stay in a rented house. On 10.5.1996 dissension arose between the parties and by that time the marriage has been consummated. It was further alleged that the appellant is a Post Graduate and arrogant person and she did not engage herself in the household activities. The appellant prior to her marriage was working as Lecturer in City Women's College, Cuttack. The aforesaid behavior of the appellant caused mental cruelty to the respondent for which he has filed the suit for divorce.

(2.) Learned counsel appearing for the appellant submitted that the appellant was residing with the respondent and they have a grown up son, who is prosecuting his studies at D.A.V Public School, Bhubaneswar. She has further submitted that the appellant has filed C.P No. 856 of 2011 before the learned Judge, Family Court, Bhubaneswar under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights. In the said proceeding for the first time, the appellant came to know about the ex parte decree passed earlier and on that ground the learned Judge, Family Court by judgment dated 04.7.2013 dismissed the Civil Proceeding. She also submitted that as the appellant had no knowledge about the ex parte decree she has filed the present appeal. Admittedly the marriage between the appellant and respondent was solemnized on 05.5.1996 and O.S No. 439 of 1996 was filed on 29.11.1996 i.e. within the period of six months from the date of marriage, as such the suit is not maintainable. Further the allegation of the respondent with regard to the character of the appellant as well as mental cruelty has not been proved rather the mental cruelty was imposed on the wife by the husband with false allegation regarding her character. Therefore, the ex parte decree is liable to be set aside and in the alternative liberty may be given to the appellant to contest the said suit as till date the respondent is coming to the appellant though they are residing separately. She further stated that the respondent has obtained the ex parte decree by practising fraud on the Court as well as on the appellant.

(3.) Learned counsel appearing for the respondent submitted that though the appellant has appeared in the suit through her counsel, she has not filed her written statement therefore rightly she was set ex parte. He further submitted that the court below has passed the ex parte decree accepting the mental cruelty done by the appellant and the same need not be interfered with. In support of his contention he has relied on a decision of the Madras High Court in the case of Indumathi Vs. Krishnamurthy, 1998 3 MadLJ 435 wherein the Court taking into consideration the proviso to Section 14(1) of the Hindu Marriage Act held that the provisions requiring intervention of one year between the date of marriage and the date of presentation for petition for divorce are not that mandatory. The proviso provides for leave to the parties by the Court to present petition before the expiry of such period on the ground that the case is of exceptional hardship to the petitioner or of exceptional depravity on the pan of the respondent. But the proviso proceeds to provide that at the trial "if appears to the court at the hearing of the petition that the petitioner obtained leave "to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until the expiry of one year from the date of marriage. xx xx xx Now a leave obtained by suppressio veri or suggestio falsi should be treated as vitiated to the extent of being non est and the Proviso, therefore, provides that "the Court may dismiss the petition" but without prejudice to any petition which may be brought after the expiry of one year as aforesaid. But since the Court may also decree the petition only with the rider that the decree shall not be operative before one year from the date of the marriage, the petition, though filed before the prohibited period of one year, and that too on misrepresentation or concealment, stands fully legalized and regularised and the prohibition that the decree shall not be effective until one year from the date of marriage may itself become of no practical effect or utility as in contested divorce cases, a decree is seldom available before that period, notwithstanding the directive in sec. 21-B(2) of the Act.