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Smt. Anchal vs Arpit on 7 August, 2018

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HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
C.R.No.227/2018
(Smt. Anchal Vs. Arpit)
Indore, Dated: 07.08.2018
Shri J.B. Dave, learned counsel for the petitioner.

Shri Vismit Panot, learned counsel for the respondent.

The petitioner/wife has filed the persent revision petition
against the order dated 01.12.2017 by which application under
Order 7 Rule 11 of the CPC has been rejected by the Principal
Judge of Family Court, Dhar.

The marriage between the petitioner and the respondent
was solemnized on 27.05.2013 and out of which the petitioner
gave birth to the baby girl. After the marriage, the dispute
arose between them and they started living separately. The
respondent filed the petition under Section 13(1)(i-a) (iii) of
the Hindu Marriage Act seeking divorce against the petitioner.
The petitioner sought divorce on the ground of cruelty as well
as on the ground that she is suffering from mental disorder.

After notice, the present petitioner filed an application
under Order 7 Rule 11 of the CPC seeking dismissal of the
petition as no cause of action accrued for filing the petition
under Section 13(1)(i-b) of the Hindu Marriage Act.
According to the petitioner, she lived with the respondent from
27.05.2013 to 19.06.2016 and during this period due to
cohabitation she gave birth to the daughter on 27.05.2013 who
is aged about 1 year. Accordingly, as per Section 13(1)(i-b) of
the Hindu Marriage Act there has to be two years separation in
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order to seek the decree of divorce.

Learned Family Judge by order 01.12.2017 has rejected
the application on the ground that the respondent is seeking
divorce on Section 13(1)(i-a) also, readwith sub Section (iii) of
the Hindu Marriage Act and for which there is no period
prescribed, therefore, the application is liable to be dismissed,
hence present petition before this Court.

I have heard learned counsel for the parties.

Section 13(1) (2) of the Hindu Marriage Act, 1955 are
reproduced below:

“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
(ia) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or]
(ib) has deserted the petitioner for a continuous period
of not less than 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
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 include 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
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(iv) has been suffering from a virulent and incurable
form of leprosy; or

(v) has been suffering from veneral 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 sub-section, 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 willful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate
expression shall be construed accordingly.

(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 upward after the passing of a decree of
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 the 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;

(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 Maintenance Act, (78 of 1956), or in a
proceeding under Section 125 of the Code of Criminal
Procedure, 1973, (Act 2 of 1974) or under corresponding
Section 488 of the Code of Criminal Procedure, (5 of 1898), a
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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”

According to the aforesaid section, any marriage may on
the petition presented either by wife or husband can be
dissolved by a decree of divorce on the ground that the other
party has treated the petitioner with cruelty and on the ground
that she is suffering from mental disorder.

It is clear from the pleading of the petition, the
respondent sought the decree of divorce under Section 13(1)
(i-a), not under Section 13(1)(i-b) and for which there is no
period prescribed. The period of two years is prescribed only
if the petition is filed under Section 13(1)(i-b), therefore,
application filed by the petitioner is absolutely misconcieved,
hence, the trial Court has rightly rejected the same.

No case for interference is made out. Present civil
revision is accordingly dismissed.

(VIVEK RUSIA)
Judge
jasleen

Digitally signed by Jasleen
Singh Saluja
Date: 2018.08.09 17:52:05
+05’30’

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