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Ramandeep Kaur vs Amanpreet Singh on 12 February, 2018

FAO-M-358-2014 (OM) -1-


(224) FAO-M-358-2014 (OM)
Decided on: February 12, 2018.

…. Appellant


….. Respondent



Present: Mr. Anoop Singh, Advocate,
for Mr. Ashish Verma, Advocate
for the appellant.

Mr.P.K.S. Phoolka,Advocate
for the respondent.



The wife had obtained ex parte decree of divorce vide

judgment and decree dated 06.05.2014.

The appellant has filed this appeal claiming that a fraud

has been played upon her as well as on the Court. It is averred in the

grounds of memorandum of appeal that she married with the respondent on

31.05.2013 after running away from her house. Initially, both families

opposed the marriage, but they married with a hope that families would

reconcile. The appellant claims that she was being humiliated by her in-laws

and they used to spoil the mind of respondent against her, as the family

members of the respondent entered into an conspiracy to get rid of her. The

respondent in a clever manner asked the appellant to stay in a paying guest

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accommodation at Dabwali, District Sirsa, with the promise that he would

keep visiting her and he would satisfy the ego of his family members.

During her stay in the paying guest at Dabwali, District Sirsa, the entire

expenses were borne by the respondent. The divorce petition was filed in

the Court to satisfy his family members with an understanding that same

would be withdrawn in the midway. The divorce petition was got filed

before the trial Court on 28.02.2014 whereas the date of marriage was

mentioned in the petition as 31.05.2013. The statutory bar of Section 14 of

the Hindu Marriage Act does not permit any Court to entertain a petition for

dissolution of marriage before expiry of one year from the date of marriage.

Section 14 of Hindu Marriage Act reads as follows;

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

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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}”.

In context to the above said provisions of law, we have seen the

impugned judgment and decree. The date of marriage is mentioned in the

petition as 31.05.2013, whereas, the date of filing of the divorce petition is

28.02.2014 and even ex parte decree of divorce was also passed within a

period of one year. Although the appellant-wife had herself filed petition in

contravention to the provisions of law, but it is settled principle of law that

there is no estoppel against the statute and against any action done in

contravention to the statutory provisions and the same cannot be legalized

even by consent. By mutual consent of a party the statutory provisions

cannot be permitted to be violated. The respondent being ex parte, the plea

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of fraud having been played on Court as well as the appellant is believable.

A perusal of the impugned judgment and decree indicates that no leave to

file the divorce petition before one year of the marriage had been obtained.

The judgement and decree dated 06.05.2014 being contrary to the mandatory

provisions of law are not sustainable.

The appeal is accordingly allowed and the judgment and

decree dated 06.05.2014 are hereby set aside. However, this judgment will

not, in any manner, prejudice the rights of the parties to seek divorce in

accordance with law, as the period of one year has now expired. Learned

counsel for the respondent has vehemently contended that the appellant had

voluntarily obtained decree of divorce ex parte against the respondent and

now her mind having changed she wants to grab money from the respondent

under the garb of the present appeal.

We have considered the said contention of respondent and are

of the opinion that the respondent had intentionally remained ex parte before

the lower Court which corroborates the plea taken up in the appeal. Even

otherwise there being no estoppel against statute, the judgment and decree

having been passed within a period of one year deserves to be set aside as no

circumstances have been considered by the lower Court to permit or grant of

leave to file the divorce petition before the expiry of one year.

The counsel for the respondent has also submitted that no

application for recalling the order passed by the lower Court has been filed

by the appellant as such the appeal is not maintainable.

We have carefully considered the said contention of the counsel

for the respondent and are of the opinion that after the grant of decree of

divorce, the Court becomes functus officio.

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It is settled principle of law that the fraud vitiates all the

actions. In this context reference can be made to judgment of criminal

jurisprudence. The decree having been obtained, in any manner, in

contravention to the statutory provisions of Section 14 of the Hindu

Marriage Act, the same can be challenged in appeal before this Court.


February 12, 2018. (GURVINDER SINGH GILL)
tarun JUDGE

Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No

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