Rajendra Narayan Swain vs Subhashree Swain & Another

This matter is taken up through Hybrid Mode.

Heard Mr. Mahes Das, learned counsel appearing for the appellant.

This appeal under Section-19(1) of the Family Court Act, 1994 is directed against the judgment dated 12.04.2022 delivered in Civil Proceeding No.421 of 2014.

From a reading of the judgment, it appears that, even though all the issues, as framed on the rival pleadings and as reflected in paragraph-4 of the judgment, have been discussed and decided, but it appears that the suit was barred under Section-14 of the Hindu Marriage Act, in as much as the suit was filed within one year of marriage without obtaining any leave under proviso to Section-14 of the Hindu Marriage Act.

Section-14 of the Hindu Marriage Act is a stringent provision prohibiting filing of any petition seeking dissolution of marriage by a decree of divorce unless a period of one year has elapsed from the date of marriage.

It is an admitted fact that the Civil Proceeding No.421 of 2016 was instituted on 11.11.2013, whereas the marriage was solemnized on 30.05.2013. In para-11, the Judge, Family Court has observed as follows:

“Therefore, taking into consideration all the above facts and circumstances coupled with evidence on record, I am of the considered view that the petitioner has not been able to establish his allegations against the respondents particularly against the respondent No.1 who is his wife with regard to her sexual involvement with another person other than her spouse. Accordingly, it is found that there is no such cause of action on the part of the petitioner to file this petition for dissolution of his marriage with the respondent no.1 and as such the same is not maintainable in the eye of law.”

It has been simultaneously observed at the same paragraph as follows:

“Admittedly the marriage in between the petitioner and the respondent no.1 was solemnized on 30.05.2013 while the petition under Sections-12 & 13 of the Hindu Marriage Act has been filed on 11.11.2013 i.e. within six months of their marriage which is barred by Section-14 of the Hindu Marriage Act. Under Section-14 of the Hindu Marriage Act, it is clearly enshrined that no petition for divorce to be presented within one year of date of marriage without the leave of the Court. Here in this case, though the divorce petition was filed within six months of marriage, yet no such leave was taken from this Court to that respect. The petitioner has also not shown any such urgency to file this petition without adhering to the statutory provision of law.”

It is really surprising that without deciding the issue of the maintainability of the said matrimonial suit under Section 14 of the Hindu Marriage Act, 1955, the Judge, Family Court has proceeded to decide the matter on merit. This is wholly undesirable.

Be that as it may, since the matrimonial suit has been dismissed, we are not inclined to re-open the same on that ground, as the suit was barred by the provisions of Section- 14 of the Hindu Marriage Act, 1955.

Hence, the suit be deemed to have been dismissed for instituting within one year, which is not permissible under the law.

So far as the finding on “sexual involvement of the respondent no.1 with some other person” is concerned, this has been returned on appreciation of the evidence.

According to our considered opinion, such appreciation was entirely uncalled for. Hence, the finding in this regard will not operate as res judicata.

However, on cumulative assessment, we find no reason to interfere with the judgment. We do make it absolutely clear that after the disability that has been created by Section-14 of the Hindu Marriage Act is over, the petitioner may file a fresh suit for divorce.

Draw the decree accordingly.

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