# Smt. Dimple Tyagi v. Himanshu Tyagi

- **Citation:** (2020) 9 ILRA 228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** First Appeal Defective No. 373 of 2019
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-dimple-tyagi-v-himanshu-tyagi-45100
- **Pages:** 5

## Headnote

Civil law - Hindu Marriage Act,1955 -
Section 14- - Divorce with mutual consent
filed-within 3 months of marriage-Family
Court rejected application-no fact was
concealed by parties-impugned judgment
quashed-remanded back to reconsider if
case falls under exception of section 14.

Held - Proviso to Section 14 is intended to relax
one year's limit though in very exceptional
cases. It, however, enables Court to exercise
discretion to grant leave to present such petition
before expiry of one year's limit in case of
exceptional hardship to petitioner or exceptional
depravity of respondent. Court while considering
application to grant leave for entertaining
application within one year, must not act in a
casual pedantic manner but should look into the
objective, intention and spirit of Legislation. In
deciding an application to leave, no elaborate
enquiry is required. It does not require to be
considered as a preliminary trial. In our view,
Court in exercise of discretion to grant leave,
should take into consideration the petition and
objection, if any. (Para 12)

In the present case, application was filed by
both the parties and there was no objection. It
is not the case that any fact was concealed by
parties or whatever they had stated in the
application was incorrect. In these facts and
circumstances, the manner in which application
has been dealt with by Court below, appears to
be unfair, illegal and unreasonable. In fact, from
the order which we have quoted above, we
could not discern any application of mind and
valid reason on the part of Court below for
declining to grant leave. (Para 13) (E-9)

Cases referred: -

## Text

228 INDIAN LAW REPORTS ALLAHABAD SERIES
The trial court shall ensure delivery of
vacant possession of the house in dispute to
respondents no. 1/a to 1/i on the deposit of
Rs. 5 lakhs as aforesaid without recognising
any occupational rights of the tenants
pendente lite. In the event of default, the
amount of Rs. 6500/- alongwith interest may
be released in favour of the contesting
respondents
but
the
occupational
cost
deposited by the tenants pendente lite shall be
released in favour of the appellants no. 1/1
and 1/2. Cost of litigation is made easy.

49. The first appeal is dismissed.
----------
(2020)09ILR A228
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal Defective No. 373 of 2019

Smt. Dimple Tyagi ...Appellant
Versus
Himanshu Tyagi ...Respondent

Counsel for the Appellant:
Sri Anshul Pathak

Counsel for the Respondent:
Sri Rahul Singh Dahiya

Civil law - Hindu Marriage Act,1955 -
Section 14- - Divorce with mutual consent
filed-within 3 months of marriage-Family
Court rejected application-no fact was
concealed by parties-impugned judgment
quashed-remanded back to reconsider if
case falls under exception of section 14.

Held - Proviso to Section 14 is intended to relax
one year's limit though in very exceptional
cases. It, however, enables Court to exercise
discretion to grant leave to present such petition
before expiry of one year's limit in case of
exceptional hardship to petitioner or exceptional
depravity of respondent. Court while considering
application to grant leave for entertaining
application within one year, must not act in a
casual pedantic manner but should look into the
objective, intention and spirit of Legislation. In
deciding an application to leave, no elaborate
enquiry is required. It does not require to be
considered as a preliminary trial. In our view,
Court in exercise of discretion to grant leave,
should take into consideration the petition and
objection, if any. (Para 12)

In the present case, application was filed by
both the parties and there was no objection. It
is not the case that any fact was concealed by
parties or whatever they had stated in the
application was incorrect. In these facts and
circumstances, the manner in which application
has been dealt with by Court below, appears to
be unfair, illegal and unreasonable. In fact, from
the order which we have quoted above, we
could not discern any application of mind and
valid reason on the part of Court below for
declining to grant leave. (Para 13) (E-9)

Cases referred: -

1. Rabindra Nath Mukherjee Vs Iti Mukherjee
1991 (1) CLJ 209

2. Indumathi Vs Krishnamurthy (1998) 3 MLJ 435

3. Mr. X Vs Mrs. Y 2001 MLJ 696.

(Delivered by Hon'ble Sudhir Agarwal, J.
& Hon'ble Rajeev Misra, J.)

1. The delay in filing this appeal
having been condoned vide order of date
passed on Delay Condonation Application,
as requested by counsels for both the
parties, we proceed to decide this appeal at
this stage on the basis of paper book of the
appeal itself since a short legal issue is
involved in the matter.

2. This appeal under Section 19 of
Family Courts Act, 1984 (hereinafter
9 All. Smt. Dimple Tyagi Vs. Himanshu Tyagi
229
referred to as "Act, 1984") has arisen from
judgment and order dated 10.05.2019
passed by Principal Judge, Family Court,
Ghaziabad in Original Suit No. 188 of 2019
rejecting
application
for
entertaining
Petition under Section 14 of Hindu
Marriage Act, 1955 (hereinafter referred to
as "Act, 1955") before expiry of one year
from the date of marriage and returning
plaint to plaintiff-appellant being premature.

3. Facts in brief, giving rise to present
appeal are that appellant, Smt. Dimple
Tyagi and respondent, Himanshu Tyagi
were married according to Hindu rituals on
09.02.2019. The marriage was solemnized
at Ghaziabad. After one week of marriage,
both
the
parties
developed
strained
relations and differences as a result whereof
appellant came to her parents' residence on
10.03.2019 and residing thereat since then.
Both the parties ultimately found it difficult
to continue in the matrimonial relationship
with each other, hence resolved to seek
divorce with mutual consent and for this
purpose an application dated 09.05.2019
under Section 14 of Act, 1955 was filed by
both the parties in the Court of Principal
Judge, Family Court, Ghaziabad which was
registered as Petition No. 188 of 2019.
Since application was filed within one year
of marriage, they also sought permission of
Court below to entertain application before
expiry of period of one year and allow
mutual divorce in terms of compromise
which was recorded in the form of an
affidavit dated 05.04.2019, filed before
Court below.

4. The application came up for
consideration before Family Court on
10.05.2019. It rejected application seeking
permission for filing divorce petition with
mutual consent before expiry of one year
on the ground that as per report of
Munsarim, one year period has not elapsed
and there is no sufficient reason to grant
permission
to
the
parties
to
move
application under Section 14 of Act, 1955
before expiry of period of one year. The
short order passed by Family Court reads as
under:

^^i=koyh izLrqr gqbZA

vaxhdj.k ds fcUnq ij lquk rFkk
eqalfje dh vk[;k dk voyksdu fd;kA eaqlfje
dh vk[;k ds vuqlkj i{kdkjksa dh 'kknh dks vHkh
,d o"kZ dh vof/kr iw.kZ ugha gqbZ gSA mHk; i{k
dh vksj ls /kkjk 14 fgUnq fookg vf/kfu;e ds
vUrxZr mDr ;kfpdk dks le; iwoZ nkf[ky djus
dh vuqefr pkgh x;h gSA

lquk o eqlfje vk[;k dk voyksdu
fd;kA

eqalfje vk[;kuqlkj i{kdkjksa dh 'kknh
dks vHkh ,d o"kZ dh vof/k iw.kZ ugha gqbZ gSA mHk;
i{k dh vksj ls le; iwoZ ;kfpdk nk;j djus dh
vuqefr gsrq nk;j izkFkZuk&i= vUrxZr /kkjk& 14
fgUnw fookg vf/kfu;e mfpr vk/kkj uk gksus ds
dkj.k fujLr fd;k tkrk gS ,oa okn izhEp;kSj
gksus ds dkj.k fu;ekuqlkj okil fd;k tkrk gSA^^

"File produced.

Heard
on
the
point
of
maintainability and perused the report of
the Munsarim. As per the report of the
Munsarim, a period of one year hasn't yet
elapsed since the time of marriage of
parties. Leave to file the said petition u/s 14
of the Hindu Marriage Act prior to
expiration of the aforesaid period has been
sought on behalf of both the parties.

Heard, and perused report of the
Munsarim.

As
per
the
report
of
the
Munsarim, a period of one year hasn't yet
elapsed since the time of marriage of
parties. The application filed u/s 14 of the
Hindi Marriage Act on behalf of both the
parties seeking leave to file the petition
prior to expiration of the aforesaid period
230 INDIAN LAW REPORTS ALLAHABAD SERIES
is rejected as having no appropriate
ground, and the suit is returned on account
of it being premature." (English Translation
by Court)

(emphasis added)

5. Learned counsel for appellant
contended that impugned order is wholly
unreasoned, non speaking and has not
considered the circumstances disclosed by
both the parties in their application seeking
leave of Court to entertain mutual divorce
petition before expiry of one year under
Section 14 of Act, 1955. Court below in a
abrupt
manner
has
simply
rejected
application observing that no sufficient
ground is mentioned, without discussing or
considering the same.

6. Point for determination to decide
this appeal is "whether Court below was
justified
in
rejecting
application
of
appellant and respondent seeking leave of
Court to entertain mutual divorce petition
under Section 14 of Act, 1955 before
expiry of one year of marriage?"

7. In order to consider this question,
we may have a glance over Section 14 of
Act, 1955 as amended by Act No. 68 of
1976 and it reads as under:

"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 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 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 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 before 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." (emphasis added)

8. Section 14(1) in mandatory terms
provides that no application for mutual
divorce
shall
be
competent
to
be
entertained by any Court unless at the date
of presentation of petition, one year has
elapsed since the date of marriage.
However, by means of Proviso, an
exception has been provided by Legislature
empowering Trial Court to allow a petition
to be presented before one year has elapsed
on an application made to it in this behalf if
it is shown that the case is one of
exceptional hardship to applicant or of
9 All. Smt. Dimple Tyagi Vs. Himanshu Tyagi
231
exceptional depravity on the part of
respondent. Sub-section (2) also provides
that in disposing of an application for leave
to present a petition for divorce before
expiration of one year from the date of
marriage Court shall have regard to
interests of any children of the marriage
and to the question whether there is an
reasonable probability of reconciliation
between the parties before expiration of the
said one year. Thus rigour of sub-section
(1) of Section 14 has been diluted by
Proviso
to
Sub-section
(1).
Proviso
therefore is in the nature of an exception
and what has to be considered by Court
below has been further clarified in Subsection (2).

9. In the present case, since
application was filed almost within three
months from the date of marriage, and
there was no issue (child) to the parties,
hence Trial Court had to consider question
of reasonable probability of reconciliation
between the parties before expiration of
one year. However, order quoted above
clearly shows that nothing has been
considered at all. Section 14 on the one
hand intends to discourage married couple
to seek divorce in a hurried manner and
thus period of one yeas has been given so
that difference or dispute, if any, between
couple, on account of minor issues, the
same may be sorted out and marriage may
be saved by reconciliation between the
parties with the passage of time. The period
of one year has been thought appropriate
for this purpose. However, Legislature has
consciously given a right to either of
couple, to move such application before
one year has elapsed since the date of
marriage, if it is established that the case is
one
of
exceptional
hardship
to
the
petitioner or exceptional depravity on the
part of opposite party. Even if leave is
granted at initial stage, it can be recalled, if
other party may show that it was obtained
by misrepresentation or concealment of
fact. Even if a decree is passed, Court may
defer operation of such decree until after
expiry of one year from the date of
marriage or may even dismiss the petition
without
prejudice
to
move
another
application after expiration of period of one
year upon the same or substantially same
facts.

10. Looking to the language of Section
14 in its entirety, a Division Bench of
Kolkatta High Court in Rabindra Nath
Mukherjee V. Iti Mukherjee 1991 (1) CLJ
209 had taken a view that Section 14 itself is
directory and not mandatory. The above view
was followed by a learned Single Judge of
Madras High Court in Indumathi Vs.
Krishnamurthy (1998) 3 MLJ 435.

11. A Division Bench of Bombay
High Court also examined this issue in Mr.
X Vs. Mrs. Y 2001 MLJ 696. It observed
that a bare reading of Section 14 shows that
a petition can be presented before expiry of
one year from the date of marriage by
obtaining leave of Court. Section 14 though
was enacted with object of discouraging
young spouses to take recourse to legal
proceedings for divorce in a frivolous and
irresponsible manner but Section (2)
provides exception, i.e., where petitioner
has
faced
exceptional
hardship
or
exceptional depravity at the hands of
respondents. It is for Trial Court, who hears
the application, to decide as per the
circumstances, whether prima facie case of
exceptional hardship or depravity has been
made out. Legislature, therefore, has
permitted
relaxation
in
the
period
mentioned in Section 14(1) and, in our
view, that should have been given due
consideration by Court below. s
232 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Looking to the history of Section 14,
we find that initially it provided a period of
three years from the date of marriage. It was
amended in 1976 and period of three years was
reduced to one year. Proviso to Section 14 is
intended to relax one year's limit though in very
exceptional cases. It, however, enables Court to
exercise discretion to grant leave to present such
petition before expiry of one year's limit in case
of exceptional hardship to petitioner or
exceptional depravity of respondent. Court
while considering application to grant leave for
entertaining application within one year, must
not act in a casual pedantic manner but should
look into the objective, intention and spirit of
Legislation. In deciding an application to leave,
no elaborate enquiry is required. It does not
require to be considered as a preliminary trial.
In our view, Court in exercise of discretion to
grant leave, should take into consideration the
petition and objection, if any.

13. In the present case, application
was filed by both the parties and there was
no objection. It is not the case that any fact
was concealed by parties or whatever they
had stated in the application was incorrect.
In these facts and circumstances, the
manner in which application has been dealt
with by Court below, appears to be unfair,
illegal and unreasonable. In fact, from the
order which we have quoted above, we
could not discern any application of mind
and valid reason on the part of Court below
for declining to grant leave.

14. The point for determination,
formulated above, therefore, is answered in
favour of appellant. Impugned judgment
and order dated 10.05.2019 is accordingly
held unsustainable.

15. In the result, appeal is allowed.
Judgment and order dated 10.05.2019
passed by Principal Judge, Family Court,
Ghaziabad in Petition No 188 of 2019 is
hereby set aside.

16. Matter is remanded to Family
Court to reconsider application dated
09.05.2019 and pass appropriate order in
the light of discussions made above and in
accordance with law, expeditiously.

17. No costs.
----------
(2020)09ILR A232
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2020

BEFORE
THE HON'BLE AJAY BHANOT, J.

Second Appeal No. 904 of 2003

Cantonment Board, Agra ...Appellant
Versus
Smt. Pushpa Rani Gupta & Ors.
 ...Respondents

Counsel for the Appellant:
Sri C.B. Gupta

Counsel for the Respondents:
--

Right of erecting or re-erecting the
constructions in a cantonment area-solely
conferred by statute-strictly regulatedcivil court simply ousted-Court below
acted in excess of its jurisdiction.

Held, The plaintiffs respondents did not contest
the proceedings on merit, by showing cause to
the competent authority. The suit was brought
even while the adjudication proceeding before
the competent authority, was pending. No final
order of demolition, or any final decision on the
unauthorized constructions, was rendered by
the competent authority in the said proceedings.
(Para 83)

The institution of the suit was clearly to
preempt, and prevent adjudication by the