Mahendra Nath Yadav vs Sheela Devi

Mahendra Nath Yadav .... Appellant

Versus

Sheela Devi .... Respondent

ORDER

1. This appeal has been preferred against the judgment and order dated 8th

October, 2004 of the High Court of Judicature at Allahabad passed in First Appeal

Nos.786 and 787/2000 and by which the decree of divorce granted by the Family

Court, Varanasi has been reversed and dismissal of the petition under Section 9 of

the Hindu Marriage Act, 1955 (hereinafter called as "Act, 1955") filed by the

respondent before the Family Court has also been reversed and her case has been

allowed. The parties herein got married on 3rd May, 1990. The ceremony of

'Gauna' was performed in 1991. Appellant is serving in the Army and respondent is

serving as a teacher. There was no proper opportunity for both of them to lead a

normal family life. Thus, differences arose and litigation started between the

parties. The respondent-wife filed an Application under Section 125 of the Code

of Criminal Procedure, 1973 (hereinafter called as "Cr.P.C."), before the Judicial Magistrate, Ist Class, Varanasi. The Magistrate vide order dated 10th May, 1995,

allowed the said application by directing the appellant to pay the respondent-wife a

sum of Rs.400/- p.m. as maintenance. She also filed Case Crime No.131 of 1991

under Section 498-A of the Indian Penal Code, 1860 (IPC) against the appellant

and his family members in the Police Station, Choubeypur, Varanasi. The

appellant preferred Revision No.330/95 in the Court of Sessions Judge, Varanasi

against the order of the Magistrate granting the maintenance to the respondent.

However, that was dismissed by the Revisional Court vide order dated 15th

February, 1996. Though the order passed under Section 125 of Cr.P.C. was

subsequently modified by the Family Court vide order dated 2nd June, 1997, the

relations between the parties deteriorated, an attempt was made by the appellant's

family to settle the matter. According to appellant, it was customary in the locality

and in the community to which both parties belong to have a divorce through the

Panchayat. Thus, the Panchayat was convened on 7th June, 1997. The said

Panchayat decided that the appellant should pay a sum of Rs.30,000/- to the

respondent's family. It was paid and a document was prepared which was duly

signed by the parties. Thus, the marriage came to an end. In order to give legal

effect to the said customary divorce, the appellant tried to persuade the respondent

to get divorce from the Family Court under Section 13-B of the Act, 1955 by

consent. However, she did not agree. Thus the appellant approached the Family

Court by filing Petition No.370 of 1998 under Section 13 of the Act, 1955, seeking

divorce on the ground of desertion and cruelty. The respondent filed the counter

2 case i.e. Petition No.57 of 1999 under Section 9 of the Act, 1955, for restitution of

conjugal rights. The Family Court decreed the suit mainly on the ground that the

marriage stood dissolved through Panchayat and dismissed the petition filed by the

wife for restitution of conjugal rights vide order dated 15th September, 2000.

2. Being aggrieved, the respondent preferred appeals against both the orders

before the High Court and the High Court has reversed the said order in both the

cases. Hence this appeal.

3. In spite of service the respondent-wife did not enter an appearance. Thus,

we have heard Dr. J.N. Dubey, learned senior counsel appearing for the appellant.

Dr. Dubey has taken us through the evidence available on record and through both

the judgments. The High Court has rightly held that dissolution of marriage

through Panchayat as per custom prevailing in that area and in that community

permitted cannot be a ground for granting divorce under Section 13 of the Act,

1955. We fully agree with the said decision for the reason that in case the

appellant wanted a decree on the basis of customary dissolution of marriage

through Panchayat held on 7th June, 1997, he would not have filed a petition under

Section 13 of the Act, 1955. Filing this petition itself means that none of the

parties was of the view that the divorce granted by the Panchayat was legal. In

view of the above, we do not see any reason to interfere with the well-reasoned

judgment of the High Court. The appeal fails and is accordingly dismissed. No

3 costs.

...........

...................J. (P. SATHASIVAM)

......

........................J. (Dr. B.S. CHAUHAN) New Delhi, August 25, 2010.

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