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Synopsis

The Allahabad High Court recently observed that a Hindu marriage cannot be dissolved or terminated as a contract.

The division bench of Justices Saumitra Dayal Singh and Donadi Ramesh said that while sacrament based Hindu marriage can be dissolved in limited legal circumstances, such as on grounds of impotence, these allegations must be supported by evidence. 

The court was dealing with an old appeal filed by a woman against the judgment of the Additional District Judge who had dissolved the marriage between her and her husband under Section 13 of the Hindu Marriage Act, 1955, at the instance of the husband in 2011.

The parties were married on February 2, 2006. At that time, the husband was employed with the Indian Army. In 2008, the husband filed for divorce alleging that the woman deserted him in 2007. The matter was referred to mediation and the wife, in her first written statement filed in 2008, said that she was living with her father she was ready for divorce.  However, two years later, she backtracked from her consent as husband had alleged that she was infertile.

In the second round of mediation in 2010, the wife expressed her will to live with the husband but the husband refused to be together citing wife's infertility.

Meanwhile, the woman claimed that she gave birth to two children in 2008 and 2010. 

Before the court of Additional District Judge, the woman sought to contest the divorce proceedings - on the strength of her second Written Statement filed in 2010. However, the ADJ rejected the woman's plea and proceeded to hear the divorce suit on merits. It then decreed the same.

The high court noted that though the wife had initially given her consent for divorce, but well after the completion of the first mediation, she expressed her clear will to cohabit and revive the matrimonial relationship, which the court below ignored while decreeing the divorce suit. 

The division bench noted that it was after the first mediation that two children were born to the couple. It further highlighted that court below had dissolved the marriage solely on the strength of the alleged consent given by the appellant, after three years of it being recorded.

"Being obligated to dispense justice, the learned court below could not have turned a blind eye to the fact assertion (made by the appellant) of revival of the marriage between the parties. It ought to have exercised its discretion - to call for Additional Written Statement of the appellant, to explain the subsequent developments," the division bench said. 

The bench stressed that by way of a guiding principle, the court below should have examined and verified if the consent of the wife in her first written statement continued to exist without any change of mind made by the parties at the time decreeing the divorce suit. 

"In granting the divorce on the strength of mutual consent, the learned Court below may have dissolved the marriage between the parties only in the event of that consent continuing to exist on the date of the order being passed. Once the appellant claimed to have withdrawn her consent and that fact was on the record, it never became open to the learned court below to act on that (withdrawn) consent, belatedly," it said. 

Court stressed that "free consent to dissolve the marriage must not only arise at the stage of first motion of a proceeding under Section 13-B of the Act but it must survive and sustain at the stage of second motion".

Court opined that the court below ought to have examined the matter holistically.

Accordingly, court set aside the impugned judgment and remitted the matter to the court of ADJ, Bulandshahar to proceed in accordance with law.

"If no mediation may arise or be successful, necessarily the appellant may be allowed to rely on the second Written Statement in terms of later part of Order VIII Rule 9 of the C.P.C., with corresponding right to the respondent to file Replication Statement," it ordered. 

Case Title: Smt. Pinki v. Pushpendra Kumar