Recently, the divsion bench of the Patna High Court comprising, Justices P.B. Bajanthri and Jitendra Kumar held that doing second marriage even with first wife’s consent may constitute cruelty.
In the said matter, the Court was dealing with the appeal challenging the judgment and order passed by the Family Court, whereby the petition of the Appellant Plaintiff filed for divorce under Section 13 of the Hindu Marriage Act, 1955, has been dismissed on contest.
In this case, the marriage between the Appellant-Plaintiff and Respondent-Defendant was solemnized. With the consent of the Respondent-wife, the Appellant-husband solemnized second marriage to another girl in the year 2004. Thereafter, the conjugal life of the Appellant-Plaintiff and Respondent-Defendant became gradually bitter and consequently both parties began to live separately since 2005.
Back in the year 2010, the Respondent’s wife filed a complaint case for the offences punishable under Section 498A of the IPC and Sections 3 and 4 of the Dowry Prohibition Act.
Further, she alsolodged another criminal case for the offences punishable under Section 498A read with Section 34 of the IPC. However, in both criminal cases, the Appellant-husband got anticipatory bail.
The issues before the bench were:
(i) Whether the Appellant-Plaintiff had cause of action to file the divorce petition before the Family Court?
(ii) Whether the Appellant-Plaintiff has adduced evidence beyond pleadings, if yes, what would be its effect?
(iii) Whether the Appellant-Plaintiff has proved the ground of cruelty and desertion to get decree of divorce under Section 13 of the Hindu Marriage Act, 1956 against the Respondent-wife?
The bench highlighted that it is an established legal principle that, in order to determine whether a complaint presents a valid cause of action, the Court should only examine the allegations within the complaint and any accompanying documents. The assessment of the complaint should be substantive, not just a formality. Deceptive drafting intended to create the appearance of a cause of action is not acceptable. The complaint must unequivocally demonstrate a legitimate right to initiate legal proceedings.
During the Court proceedings, the Court observed that in case of failure to fulfill the undertaking given to a Court may invite initiation of contempt of the Court proceeding, but it cannot be a ground for divorce. As far as second ground, as mentioned by the Appellant-Plaintiff that they have been living separately for more than ten years, it is pertinent to point out that as per Section 13(I)(ib) of the Hindu Marriage Act, any marriage solemnized may on a petition presented by either the husband or the wife can be dissolved by decree of divorce on the ground that other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
The bench stated that there is no cause of action to the petitioner to file the divorce petition before the Family Court. It is surprising how the Family Court continued with such divorce petition bereft of any cause of action for dissolution of marriage wasting time in conducting the trial where there was no need of any trial and petition should have been rejected at the threshold under Order 7 Rule 11 of the CPC.
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