FAO-M-358-2014 (OM) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(224) FAO-M-358-2014 (OM)
Decided on: February 12, 2018.
RAMANDEEP KAUR
…. Appellant
Versus
AMANPREET SINGH
….. Respondent
CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI
HON’BLE MR. JUSTICE GURVINDER SINGH GILL
****
Present: Mr. Anoop Singh, Advocate,
for Mr. Ashish Verma, Advocate
for the appellant.
Mr.P.K.S. Phoolka,Advocate
for the respondent.
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M.M.S. BEDI, J (ORAL)
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would be withdrawn in the midway.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.
(M.M.S. BEDI)
JUDGE
February 12, 2018. (GURVINDER SINGH GILL)
tarun JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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