# Amit Singh v. Smt. Sandhya Singh

- **Citation:** (2019) 4 ILRA 1031
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-14
- **Case number:** First Appeal No. 64 of 2018
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-singh-v-smt-sandhya-singh-44915
- **Pages:** 13

## Headnote

Civil Law - Hindu Marriage Act, 1955 -
Section 10-Judicial Separation-Limitation-
legislature/framers of the Act, 1955 have
not provided any period or limitation to
present the petition under Section 10 of
the Act, 1955 for a decree of judicial
separation - a petition for getting the
decree of judicial separation can be filed
even prior to completion of one year of
marriage (Para 9 & 22)

First Appeal allowed. (E-5)

List of cases cited: -

## Text

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4 All. Amit Singh Vs. Smt. Sandhya Singh
1031
custody of minor children, the Court is
also required to consider the wishes of
minor children.

32. The appellant no.2/father is the
natural guardian of the minor children,
but as per the facts and circumstances of
the present case and as stated herein
above and the finding which has been
given by the Trial Court while passing the
impugned judgment, we are of the
considered opinion that the welfare of the
child for the custody of guardianship, is to
be given preference and from the record it
also transpires that the appellants have not
pleaded nor disputed that the minor
children Km. Gauri Misra and Master
Prakhar Misra are not getting proper
education and other facilities. It is also
proved from the record as well as the
statement given by the minor children
before us that they are getting proper
education and other facilities, which itself
reflects from the fact stated before us by
Km. Gauri Misra that she has passed her
High School Examination with 86%
marks and Sri Prakhar Misra also getting
good education at Sultanpur.

33. Taking into consideration the
settled legal proposition and facts of the
case as well as the statement given by the
children before this Court, who are
mature
enough
to
express
their
opinion/preference on their wish to stay
with "Nana" or "Father", we are of the
opinion that the judgment relied upon by
the learned counsel for the appellants Sri
Prabhat Kumar i.e Tejaswini Gaud
(supra), Ruchi Majoo (supra) and Lekha
(supra) would not apply in facts of the
case.

34. For the foregoing reasons, we do
not find any infirmity or illegality in the
impugned judgment and order dated
11.04.2018 passed by Principal Judge,
Family
Court,
Sultanpur
by
which
custody/guardianship
of
the
minor
children Km. Gauri Misra and Mr.
Prakhar Misra has been given to the
Maternal Grand father-respondent, Sri
Satish Chandra Misra.

35. However, in view of the law laid
down by the apex court, the father being a
natural guardian should be given the
visitation rights, which has not given by
the court below, we partly allow the
appeal providing visitation rights to the
father of the minor children-Sri Rama
Shanker Misra, and accordingly he has
right of visiting his children namely Km.
Gauri Misra and Sri Prakhar Misra, on
second and fourth Sunday of each month
in day hours at a place which is agreed
between the parties at Sultanpur and in
that regard, the respondent-Sri Satish
Chandra Mishra would not prevent the
father of the minors in any manner
whatsoever it may be.

36. No order as to costs.
----------
(2019)12 ILR A1031

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.11.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

First Appeal No. 64 of 2018

Amit Singh ...Appellant
Versus
Smt. Sandhya Singh ...Respondent

Counsel for the Appellant:
Amol Kumar
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:
Sanjay Kumar Pandey

Civil Law - Hindu Marriage Act, 1955 -
Section 10-Judicial Separation-Limitation-
legislature/framers of the Act, 1955 have
not provided any period or limitation to
present the petition under Section 10 of
the Act, 1955 for a decree of judicial
separation - a petition for getting the
decree of judicial separation can be filed
even prior to completion of one year of
marriage (Para 9 & 22)

First Appeal allowed. (E-5)

List of cases cited: -

1. Indumati v. Krishnamurthy reported in 1998
SCC Online Mad 477: (1999) 1 CTC 210

(Delivered by Hon'ble Saurabh Lavania,J.)

1. Case called out in the revised list.
None
appeared
on
behalf
of
the
respondent.

2. Heard learned counsel for the
appellant.

3. The instant appeal has been filed
challenging the judgment and order dated
16.05.2018, passed by the Principal
Judge, Family Court, Lucknow, in Misc.
Case No. 19/2018 (Amit Singh v. Smt.
Sandhya Singh).

4. Facts, in brief, of the present case
are to the effect that the marriage between
the
appellant
and
respondent
was
solemnized
on
15.12.2017
at
Shiv
Mandir, Shivpuri, Ghaziabad as per
Hindu Rites and Rituals. Thereafter, the
matrimonial relations between the parties
become estranged, as such, the respondent
left here matrimonial house and started
living at her parental house w.e.f.
10.05.2018.
In
these
circumstances,
appellant filed a Suit under Section 13 of
the Hindu Marriage Act, 1955 (in short
'Act, 1955') registered as Misc. Case No.
18/2018 (Amit Singh v. Smt. Sandhya
Singh), which was withdrawn as not
pressed. Thereafter, the appellant filed a
Suit for judicial separation under Section
10 of the Act, 1955 registered as Misc.
Case No. 19/2018 (Amit Singh v. Smt.
Sandhya Singh), which was dismissed on
16.05.2018 by the Principal Judge, Family
Court, Lucknow with the following
observation:-

"iqu% /kkjk&10 esa ;g Li"V izko/kku
micaf/kr fd;k x;k gS fd /kkjk&13 esa mfYYkf[kr
fdUgha Hkh vk/kkj ij /kkjk&10 dk okn izLrqr fd;k
tk ldrk gSA fgUnw fookg vf/kfu;e ds bu
izko/kkuksa ds lexz voyksdu ls ;g Li"V gS fd
fookg gksus ds ,d o"kZ i'pkr~ gh U;kf;d
i`FkDdhdj.k dk dksbZ okn U;k;ky; esa izLrqr fd;k
tk ldrk gSA oknh dk izfrokfnuh ds lkFk fookg
fnukad 15-12-2017 dks lEiUu gqvk FkkA vr% oknh
dk fookg gq, vHkh ,d o"kZ O;rhr ugha gqvk gSA
,slh fLFkfr esa izLrqr okn iathd`r gksus ;ksX; ugha
gSA rn~uqlkj vknsf'kr fd;k tkrk gSA i=koyh
nkf[ky nQ~rj gksA"

5. Assailing the order dated
16.05.2018, under appeal, the counsel for
the appellant submitted that under Section
10 of the Act, 1955, the legislature has not
provided any limitation for presenting a
petition for grant of decree of judicial
separation whereas for presenting the
petition for getting the decree of divorce,
the petition can be filed as per the
limitation provided under Section 14(1) of
the Act, 1955 and the Court below while
dismissing the petition for decree of
judicial separation filed by the appellant
erred in law in considering the limitation
provided for presenting the petition for
getting the decree of divorce.
4 All. Amit Singh Vs. Smt. Sandhya Singh
1033

6. Learned counsel for the appellant
further submitted that the controversy
involved in the instant case is covered by
the judgment passed by the High Court of
Madras in the case of Indumati v.
Krishnamurthy reported in 1998 SCC
OnLine Mad 477 : (1999) 1 CTC 210,
wherein the High Court of Madras after
taking into consideration the provisions of
the Act, 1955, observed that "from the
above legal position, it is clear that even
without leave, a petition for divorce could
be entertained and no separate Order on
an application under Sec. 14 (1) granting
leave is required. The proviso to Section
14(1) of the Act itself is an answer to the
contentions raised by learned counsel for
petitioner."

7. The relevant paras of the
judgment passed in the case of Indumati
(supra) on reproduction read as under:-

"12. In a Divisions Bench
decision of the Calcutta High Court
reported in Rabindra Nath Mukherjee v.
Iti Mukherjee @ Chatterjee, 1991 (II)
D.M.C. 227: 95 (1991) C.W.N. 1085, this
legal position was elaborately considered.
Paragraph 6 onwards is relevant for our
purpose. Paragraphs 6 to 16 read thus:-

"The
expression
"entertain",
however, as pointed out by the Supreme
Court in (2) Laxmiratan Engineering
Works, AIR 1968 SC 488 and in (3)
Hindustan Commercial Bank, AIR 1970
SC 1384, may not necessarily mean
receiving or accepting the plaint or the
petition,
or
the
initiation
of
the
proceeding, but may mean "adjudicate
upon" or "proceed to consider on merits".
Therefore, if the relevant expression in
Section 14(1) was "it shall not be
competent for any Court to entertain any
petition .... unless one year has elapsed
since the date of the marriage", I would
have held that all that is necessary is the
expiry of one year, not necessarily before
the presentation of the petition, but before
the date on which the Court adjudicates
thereon or proceeds to consider on
merits. But the express user of "the word
"presentation" in the expression "unless
on the date of the presentation of the
petition one year has elapsed since the
date of the marriage" nakedly stands in
the way of such a construction and I
regret my inability to delete the words "on
the date of presentation of the petition" by
any amount of judicial activism.

7. But the reasons that are
weighing with me for holding these
provisions to be directory and thus to
require substantial compliance only, and
not to be mandatory warranting strict
adherence on pain of rejection or
dismissal, are as hereunder.

8. The period of three years, as
originally enacted by the Legislature, has
now been reduced to one year only by the
Amendment Act of 1976. That, in my view,
clearly indicates that the Legislature itself
has been convinced that the period
provided for "fair trial" to marriage was
unduly
long
and
required
circumscription.

9. If the Legislature considered
this "fair trial rule" to be of that great
importance
and
of
that
paramount
necessity for the stability of marriage to
make it mandatory, it would have inserted
similar
provisions
in
the
other
matrimonial legislations also by way of
later amendments. It may be noted that
the Legislature has amended rather
extensively the Parsi Marriage & Divorce
Act, 1936 but without inserting any such
analogous provision. If the Legislature
really intended the provisions to be that
mandatory, it would have a fortiorari
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
inserted such provisions in the other
matrimonial legislations, with Article 14
of the Constitution mandating equal
protection of laws and Article 15
interdicting any discrimination on the
ground of religion. If Hindu Marriages
and
Special
Marriages
warranted
protection of "fair trial rule", the
Christian or the Parsi marriages cannot
be discriminated by denial of such
protection.

10. The Proviso to Section 14(1)
would also indicate 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 part 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...".
Now a leave obtained by supperesio 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 legalised 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. 21B(2)of the Act.

11.
A
premature
petition
presented with leave wrongfully obtained
is no better, if not worse, than one
presented without leave, and if such a
tainted petition can nevertheless be
decreed, then I am yet to know why
premature petition, without any such
taint, cannot be similarly decreed. Once
the Legislature has been found to have
permitted decreeing of a premature
petition founded on leave obtained
dishonestly, the provision in Section 14(1)
prohibiting presentation of petition before
the prescribed period cannot be held to be
that
mandatory
to
warrant
rigid
compliance and must be held to be
directory
which
require
substantial
compliance only. For, to hold otherwise
would amount to rule that law favours the
dishonest maneuverer and discriminate
against the honesterrant.

12. There is yet another way of
looking into the matter. While I do not
suggest that the Legislature, or even the
Judiciary, goes or can always afford to go
in a common-sense course, we must,
whenever possible, interpret laws in a
common- sense way and by importing a
little hit of common sense whenever
necessary. Now, Section 14 (1) does not
at all provide for any waiting period for a
matrimonial
proceeding
for
judicial
separation which can be decreed only on
grounds which justify divorce, nor for
dissolution of marriage by a decree of
4 All. Amit Singh Vs. Smt. Sandhya Singh
1035
nullity under Sec. 11. Now, while
pregnancy of the wife per alium at the
time of marriage is a ground for
nullifying the marriage under Section 11,
pregnancy per alium after the date of
marriage is a ground for divorce under
Section 13 and, therefore, for judicial
separation also under Section 10. Judicial
Separation is very often a stepping to a
divorce and, more often than not, a
decree for judicial separation serves, as
the foundation for a decree of divorce
under Section 13 (1)(i). From the
matrimonial point of view, a post-marital
per alium pregnancy is obviously more
deprecable than a per-marital one and if
the aggrieved husband intending to
proceed for divorce on the ground of
post-marital per alium pregnancy of the
wife is still mandatorily required to give a
"fair trial" to the marriage for one year, I
do not understand why a husband shall be
relieved therefrom when he proceeds to
sue the wife for Judicial separation on the
same ground or to sue the wife for a
declaration of nullity on the ground of per
alium pregnancy of the wife at the date of
marriage.

13. "Then again, under the
provisions of Section 23-A, if one spouse
sues the other for, say, restitution of
conjugal rights or for Judicial separation,
the other spouse may not only oppose the
relief sought, but may himself or herself
claim for any relief, including divorce, on
the ground of the suing spouse's adultery,
cruelty or desertion. One can, therefore,
easily visualise a case where one spouse
has sued the other for restitution or
judicial separation within, say, a month
from the date of marriage and the other
spouse on entering appearance within,
say, one month thereafter, makes a claim
for divorce in the written statement. As at
present advised, I have doubts as to
whether the provisions of Section 14(1)
would stand in the way of such a counterclaim".

14. At any rate, a petition for
Judicial separation is not within the ambit
of Section 14 and, as already noted, under
Section 13A, the Court, in a divorce
proceeding on the ground of cruelty, as is
the case before us, may grant Judicial
separation. A petition, even though
labelled as one for divorce, should not
therefore be rejected "on the ground of
having been presented before one year
from the date of marriage, but the Court
should proceed to trial in order to
ascertain whether the materials on record
would justify a decree for Judicial
separation.
As
the
Supreme
Court
observed in (4) Pratap Singh v. Shri
Krishna Gupta, AIR 1956 SC 140, the
tendency
of
the
Courts
towards
technicalities or formalities are to be
deprecated for it is the substance that
must count and must prevail and take
precedence over form. A party's bona fide
right to judicial separation cannot be
scuttled in limine solely on the ground
that the party, on legal advice or
otherwise, brought himself within the
prohibition of Section 14(1) by labelling
his or her petition as one for divorce.

15. The Division Bench decision
of this Court in Smritkana v. Dilip Kumar
AIR 1982 Cal. 247, cannot, on a careful
reading, be construed to have laid down
any contrary proposition, but, on a
meaningful reading, would go to support
the ratio of my view. There also the
Division Bench, after holding the petition
for divorce to be not maintainable on the
ground of having been filed within about
61⁄2 months from the date of marriage,
nevertheless proceeded to consider as to
whether a decree of judicial separation
could be awarded. It is true that, as
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
already noted, under Section 13A, a
decree for judicial separation can be
awarded "on a petition for dissolution of
marriage by a decree for divorce". If the
Division Bench held Section 14 (1) to be
that mandatory, then it would have had to
hold that the petition, as one for divorce,
being beyond the competence of the
Court, to entertain, there was no legal
and proper "petition for dissolution of
marriage by a decree of divorce", on
which alone a decree for judicial
separation should be awarded under
section 13-A.

 16. To go back to the decision of
the Supreme Court in Pratap Singh v. Shri
Krishna Gupta, AIR 1956 SC 140, some
rules are so important and fundamental
that they go to the root of the matter and
must be treated as mandatory and any
non-compliance therewith would vitiate
everything.
Some
are
not
that
fundamental and even though mandatory
in form substantial compliance therewith
would be "good enough. In the absence of
the ''fair trial' rule in the Indian
matrimonial legislation for the Christians,
the Parsis, the Muslim women and also in
the absence of any such provision even in
the Hindu Marriage Act or the Special
Marriage
Act
for
matrimonial
proceedings for judicial separation and
for declaration of nullity, and for the
other reasons stated herein before, I have
not been able to persuade my self to hold
that Sec. 14(1) is that mandatory to
warrant rejection or dismissal of the
petition presented without rigid and strict
compliance thereof, I would rather hold
them to be directory to require substantial
but not literal, compliance. This aspect
was not considered by the Division Bench
in Smritkana v. Dilip Kumar, A.I.R. 1982
Cal. 247 but there is nothing contrary
either to the view I propose to take."
(Italics supplied)

13. The aforesaid decision was
followed by another learned Judge of the
Calcutta High Court in the decision
reported in. Chandrima Guha v. Sumit
Guha, 1994 (II) D.M.C 6.

14. From the above legal
position, it is clear that even without
leave, a petition for divorce could be
entertained and no separate Order on an
application under Sec. 14 (1) granting
leave is required. The proviso to Section
14(1) of the Act itself is an answer to the
contentions raised by learned counsel for
petitioner.

15. In this case, when this defect
was noted, petitioner was cautious
enough to file an application itself, and
the same is pending before the Family
Court. Therefore, there is substantial
compliance of Section 14(1) of the Hindu
Marriage Act.

16. While deciding the question
whether the respondent will be entitled to
any relief on the petition for divorce, the
question of exceptional hardship and
exceptional depravity also will have to be
considered, and taking into consideration
the same, the Court may also give such
direction as it may think necessary. If by
the time the Court takes up the case
merits, one year time has also expired, I
think the Court can take note of the
subsequent events also. In a case whether
a decree could be granted subject to the
condition that it will not take effect until
one year after the date of marriage, it is
also clear therefrom that a decree on
merits also could be passed if the court
takes up the matter for consideration on
merits after a period of one year from the
date of marriage. The question of
dismissing the petition for divorce also
will not arise.
4 All. Amit Singh Vs. Smt. Sandhya Singh
1037

17. Now I come to the decision
of this Court reported in Meganatha
Nayagar v. Shrimathi Susheela, AIR 1957
Mad. 423. There, the question that came
for consideration was, whether this Court
should interfere in an order granting
leave under Section 14 of the Hindu
Marriage Act. The question now before us
was not the matter in issue in that case.
Learned Judge (Ramaswami, J.) was
considering the scope of evidence that has
to be let in while considering an
application under Section 14. It was held
in that case that the Court has to decide
whether the allegations made in the
affidavit filed on the application are such
that if proved, they would amount to
exceptional hardship or depravity. In fact
such finding has to be entered on the
basis of the affidavit. Learned Judge was
also cautious enough to say that at that
time the petitioner is not expected to try a
petition in advance. Learned Judge
further said that he has not merely decide
on the basis of the affidavit filed support
of the petition whether exceptional
hardship or exceptional depravity has
been proved. Learned Judge has also
enumerated certain guidelines basing on
English
decisions
as
to
what
is
exceptional
hardship
or
exceptional
depravity."

8. We have heard learned counsel
for the appellant and gone through the
record.

9. For deciding the issue involved in
the present case, which is to the effect that
"whether a petition for getting the decree
of judicial separation can not be filed
prior to completion of one year of
marriage?", we feel it appropriate to quote
relevant sections of the Act, 1955. The
same are as under:-

"4. Overriding effect of Act.--Save
as otherwise expressly provided in this
Act,--

(a)
any
text,
rule
or
interpretation of Hindu law or any custom
or usage as part of that law in force
immediately before the commencement of
this Act shall cease to have effect with
respect to any matter for which provision
is made in this Act;

(b) any other law in force
immediately before the commencement of
this Act shall cease to have effect in so far
as it is inconsistent with any of the
provisions contained in this Act.

9.
Restitution
of
conjugal
rights.--When either the husband or the
wife has, without reasonable excuse,
withdrawn from the society of the other
aggrieved party may apply, by petition to
the district court, for restitution of
conjugal rights and the court, on being
satisfied of the truth of the statements
made in such petition and that there is no
legal ground why the application should
not be granted, may decree restitution of
conjugal rights accordingly.

10. Judicial separation.--[(1)
Either party to a marriage, whether
solemnized
before
or
after
the
commencement of this Act, may present a
petition praying for a decree for judicial
separation on any of the grounds
specified in sub-section (1) of Section 13,
and in the case of a wife also on any of
the grounds specified in sub-section (2)
thereof, as grounds on which a petition
for divorce might have been presented.]

(2) Where a decree for judicial
separation has been passed, it shall no
longer be obligatory for the petitioner to
cohabit with the respondent, but the court
may, on the application by petition of
either party and on being satisfied of the
truth of the statements made in such
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
petition, rescind the decree if it considers
it just and reasonable to do so.

11.
Void
marriages.--Any
marriage
solemnized
after
the
commencement of this Act shall be null
and void and may, on a petition presented
by either party thereto [against the other
party], be so declared by a decree of
nullity if it contravenes any one of the
conditions specified in clauses (i), (iv)
and (v) of Section 5.

12. Voidable marriages.--(1)
Any marriage solemnized, whether before
or after the commencement of this Act,
shall be voidable and may be annulled by
a decree of nullity on any of the following
grounds, namely:--

 [(a) that the marriage has not
been
consummated
owing
to
the
impotence of the respondent; or]

(b) that the marriage is in
contravention of the condition specified in
clause (ii) of Section 5; or

(c) that the consent of the
petitioner, or where the consent of the
guardian in marriage of the petitioner
[was required under Section 5 as it stood
immediately before the commencement of
the
Child
Marriage
Restraint
(Amendment) Act, 1978 (2 of 1978)] the
consent of such guardian was obtained by
force [or by fraud as to the nature of the
ceremony or as to any material fact or
circumstance concerning the respondent];
or

(d) that the respondent was at
the time of the marriage pregnant by
some person other than the petitioner.

(2) Notwithstanding anything
contained in sub-section (1), no petition
for annulling a marriage--

(a) on the ground specified in
clause (c) of sub-section (1), shall be
entertained if--

(i) the petition presented more
than one year after the force had ceased
to operate or, as the case may be, the
fraud had been discovered; or

(ii) the petitioner has, with his
or her full consent, lived with the other
party to the marriage as husband or wife
after the force had ceased to operate or,
as the case may be, the fraud had been
discovered;

(b) on the ground specified in
clause (d) of sub-section (1) shall be
entertained unless the court is satisfied--

(i) that the petitioner was at the
time of the marriage ignorant of the facts
alleged;

(ii) that proceedings have been
instituted in the case of a marriage
solemnized before the commencement of
this Act within one year of such
commencement and in the case of
marriages
solemnized
after
such
commencement within one year from the
date of the marriage; and

(iii) that marital intercourse
with the consent of the petitioner has not
taken place since the discovery by the
petitioner of the existence of [the said
ground].

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

(i-a) has, after the solemnization
of the marriage, treated the petitioner
with cruelty; or

(i-b) has deserted the petitioner
for a continuous period of not less than
4 All. Amit Singh Vs. Smt. Sandhya Singh
1039
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 been 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
includes 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) [* * *]

(v) has, [* * *] been suffering
from venereal 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
subsection, 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
wilful neglect of the petitioner by the
other party to the marriage, and its
grammatical
variations
and
cognate
expressions
shall
be
construed
accordingly].

(viii) [* * *]

(ix) [* * *]

[(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 upwards after the passing
of a decree for 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 such 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; or

(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
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
Maintenance Act, 1956 (78 of 1956), or in
a proceeding under Section 125 of the
Code of Criminal Procedure, 1973 (2 of
1974), [or under the corresponding
Section 488 of the Code of Criminal
Procedure, 1898 (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 before or
after the commencement of the Marriage
Laws (Amendment) Act, 1976 (68 of
1976).]

[13-A.
Alternate
relief
in
divorce proceedings.--In any proceeding
under this Act, on a petition for
dissolution of marriage by a decree of
divorce, except in so far as the petition is
founded on the grounds mentioned in
clauses (ii), (vi) and (vii) of sub-section
(1) of Section 13, the court may, if it
considers it just so to do having regard to
the circumstances of the case, pass
instead a decree for judicial separation.]

[13-B.
Divorce
by
mutual
consent.--(1) Subject to the provisions of
this Act a petition for dissolution of
marriage by a decree of divorce may be
presented to the district court by both the
parties to a marriage together, whether
such marriage was solemnized before or
after the commencement of the Marriage
Laws (Amendment) Act, 1976, on the
ground that they have been living
separately for a period of one year or
more, that they have not been able to live
together and that they have mutually
agreed that the marriage should be
dissolved.

(2) On the motion of both the
parties made not earlier than six months
after the date of the presentation of the
petition referred to in sub-section (1) and
not later than eighteen months after the
said date, if the petition is not withdrawn
in the meantime, the court shall, on being
satisfied, after hearing the parties and
after making such inquiry as it thinks fit,
that a marriage has been solemnized and
that the averments in the petition are true,
pass a decree of divorce declaring the
marriage to be dissolved with effect from
the date of the decree.]

14. No petition for divorce to be
presented within one year of marriage.--

(1) Notwithstanding anything
contained in this Act, it shall not be
competent for any court to entertain any
petition for dissolution of a marriage by a
decree of divorce, [unless at the date of
the presentation of the petition one year
has elapsed] since the date of the
marriage:

Provided that the Court may,
upon application made to it in accordance
with such rules as may be made by the
High Court in that behalf, allow a petition
to be presented [before one year has
elapsed] since the date of the marriage on
the ground that the case is one of
exceptional hardship to the petitioner or
of exceptional depravity on the part of the
respondent, but if it 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
4 All. Amit Singh Vs. Smt. Sandhya Singh
1041
shall not have effect until after the [expiry
of one year] from the date of the marriage
or may dismiss the petition without
prejudice to any petition which may be
brought after the [expiration of the said
one year] upon the same or substantially
the same facts as those alleged in support
of the petition so dismissed.

(2)
In
disposing
of
any
application under this section for leave to
present a petition for divorce the
[expiration of one year] from the date of
the marriage, the Court shall have regard
to the interests of any children of the
marriage and to the question whether
there is a reasonable probability of a
reconciliation between the parties before
the expiration of the [said one year]."

10. Before dealing with the point
involved in the present appeal, it would be
appropriate to consider the difference
between
"Judicial
Separation"
and
"Divorce".

11. In Indian Society, marriage is
considered as a sacrament. It is an irrevocable
relationship between husband and wife
established through rituals and customs.

12. A blissful marital life is a sheer result
of unconditional love, faith, belief, passion and
determination between couples who ensure to
stay together in every phase of life. But things
turn out ugly when both the spouses experience
lack of interest, mistrust, misunderstandings,
differences, etc... amongst one another.
Unfortunately, this results in the couple filing
for Divorce. But the eyes of law believe in
giving an opportunity to couples in the form of
Judicial Separation.

13. Before 1955, there was no relief
available to either party in case of a failed
marriage. They had to continue with the
marriage and couldn't break the marriage.
After Hindu Marriage Act, 1955 things
changed in favour of both parties to the
marriage. Now, in case of a failed
marriage, the parties do not need to suffer
in the marriage and can easily break their
matrimonial alliance through Judicial
Separation or by a decree of Divorce.

14. Judicial Separation is a provision
under the Indian marriage laws, wherein
both the husband and the wife get an
opportunity to introspect about giving a
chance to their marriage, before going on
with the divorce proceedings. Under a
decree of Judicial Separation, both the
parties live separately for a period of time
getting adequate space, independence and
time to think about continuing their
marriage or not. During this phase, both
the parties still carry the same legal status
of being husband and wife and yet at the
same time live separately also.

15. Judicial Separation does not
terminate marriage whereas in divorce the
parties are no more husband and wife and
hence the marriage ends.

16. Judicial Separation is a step prior
to a divorce. The purpose of judicial
separation is to provide an opportunity to
the parties to reconcile their difference.

17. In case of divorce, parties cease
to be husband and wife. Divorce puts an
end to the marriage and all mutual rights,
and obligations stand terminated. The
parties are free to marry again.

18. Either party to the marriage,
whether solemnized before or after
commencement of the Hindu Marriage
Act, 1955 can under Section 10 of the Act
file a petition for judicial separation. After
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
a decree is passed in favour of the parties,
they are not bound to cohabit with each
other. Some matrimonial rights and
obligation, however, continue to subsist.
They cannot remarry during the period of
separation. They are at liberty to live
separately from each other. Rights and
obligations remain suspended during the
period of separation. The grounds for
judicial separation are same as for
divorce.

19. Needless to say that the Act,
1955 is a "Special Act" relating to
marriage among Hindus. Section 4 of the
Act, 1955 provides overrding effect to
any other law in force immediately before
the commencement of this Act shall cease
to have effect in so far as it is inconsistent
with any of the provisions contained in
this Act.

20. It appears from the above quoted
provisions of the Act, 1955, that for
dissolution of marriage among Hindus, a
decree of divorce is necessary on the
grounds envisaged under Section 13 of
the Act, 1955. For presenting the petition
for getting the decree of divorce,
limitation is provided under Section 14 of
the Act, 1955. As per Section 14 of the
Act, 1955, the petition for divorce under
Section 13 of the Act, 1955 can be
presented only after completion of one
year of marriage, however with the leave
of the Court, the same can be filed before
expiry of one year from the date of
marriage. No limitation in the Act, 1955
(Special Act which relates to marriage
among Hindus) has been provided for
presenting the petition under Section 9,
10, 11 and 12 of the Act, 1955.

21. Needless to say that golden rule
of interpretation of an Act/Statute is that
the words of a statute must prima facie be
given their ordinary meaning. It is yet
another rule of construction that when the
words of the statute are clear, plain and
unambiguous, then the courts are bound
to give effect to that meaning, irrespective
of the consequences.

22. It is evident from the above
quoted provisions of the Act, 1955 that
the language and words used therein are
clear, plain and unambiguous. We feel
that
taking
into
consideration
the
difference between "Judicial Separation",
which is a step prior to divorce and it is
for the purpose to provide an opportunity
to the parties to think about continuing
their marriage, and "Divorce" under
Section 13 and 13(B) of the Act, 1955,
which terminates the bonding of marriage,
the legislature/framers of the Act, 1955
i.e. Parliament has not provided any
period or limitation for presenting the
petition under Section 10 of the Act, 1955
for a decree of judicial separation.

23. Taking into consideration the
aforesaid facts and the reasons as well as
the relevant provisions of the Act, 1955
and the observations made by the High
Court of Madras in the case of Indumati
(supra), we are of the considered opinion
that the order dated 16.05.2018, passed by
the
Principal
Judge,
Family
Court,
Lucknow is unsustainable in the eye of
law.

24. For the foregoing reasons, the
order dated 16.05.2018, passed by the
Principal Judge, Family Court, Lucknow
is hereby set-aside. The matter is
remanded back to the Principal Judge,
Family Court, Lucknow to decide the case
of the appellant on merits in accordance
with
law.
4 All. Shailendra Kumar Singh Vs. Smt. Reeta Singh & Anr.
1043

25. The appeal is allowed with the
aforesaid observation.
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(2019)12 ILR A1043