Patna HC: Second marriage even with the consent of the first wife may constitute cruelty


Recently, the Patna High Court ruled that a second marriage even with the consent of the first wife may constitute cruelty.

Bench Justices BB Baganthari and Jitendra Kumar He was handling the appeal challenging the judgment and order of the Family Court, as the appellant plaintiff’s petition for divorce under Section 13 of the Hindu Marriage Act 1955, was dismissed on grounds of appeal.

In this case, the marriage was concluded between the appellant and the plaintiff, the defendant and the defendant. With the consent of the defendant wife, the appellant husband contracted his second marriage to another girl in 2004. After that, the marital life of the plaintiff appellant and the defendant defendant gradually became bitter, and thus the two parties started living separately from then on. 2005.

In 2010, the defendant’s wife filed a complaint case regarding offenses punishable under Article 498A of the Islamic Penal Code and Articles 3 and 4 of the Dowry Prohibition Act.

The defendant wife also filed another criminal case for crimes punishable under Article 498A read together with Article 34 of the Islamic Penal Code. However, in both criminal cases, the appellant’s husband obtained anticipatory bail.

The issues before the bench were:

(i) Whether the plaintiff appellant had reason to file for divorce before the family court?

(2) Whether the appellant has presented evidence beyond the pleadings, and if yes, what is the effect of that?

(iii) Whether the appellant had established cause of cruelty and desertion to obtain a judgment of divorce under Section 13 of the Hindu Marriage Act, 1956 against the defendant wife?

The Tribunal noted that it is also the consistent legal position that to find out if a complaint discloses any cause of action, the court need only consider the assertion in the complaint and the document, if any, submitted in support of the complaint. Reading the complaint should be meaningful, not formal. Clever wording that creates the illusion of cause of action cannot be allowed. A clear right to file a lawsuit must be indicated in the lawsuit.

The Supreme Court noted that if a bond given to the court is not fulfilled, it may invite proceedings to be instituted in contempt of court, but that cannot be grounds for divorce. With respect to the second reason, as the appellant stated that they have been living separately for more than ten years, it is important to note that as per section 13 (I) (b) of the Hindu Marriage Act, any marriage may be dissolved on the application of the husband or wife under A decree of divorce on the basis that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the filing of the petition.

The Court stated that there was no reason for the petitioner to apply for divorce before the Family Court. It is amazing how the family court continued to file this divorce application without any reason to file an annulment case and waste time in conducting the trial as there was no need for any trial and the petition should have been dismissed at the threshold under CPC Order 7 Rule 11.

The Supreme Court referred the case Bahaj Nahar vs. Neelima Mandal and Anwar. He stated that the aim and purpose of pleadings and cases is to ensure litigants have access to court with all cases clearly identified and to prevent expanding cases or changing reasons during trial. Its aim is also to ensure that each side is fully aware of the questions that are likely to be raised or considered so that they have an opportunity to present relevant evidence appropriate to the cases before the Court.

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The Court held that with regard to cruelty, there was no assertion in the petition, which would constitute legal cruelty as provided under Section 13(I)(ia) of the Hindu Marriage Act. Apart from pleading, he stated that during his main interrogation that when he left his house to live in Patna, the defendant’s wife, who was living in his house in the village, was beating his parents. But there is no such defense or evidence in the application, and this evidence is outside the defense, and it is subject to rejection, and it cannot be considered as evidence of the alleged reason for divorce.

The Supreme Court stated that according to the appellant husband’s acknowledgment, he had entered into a second marriage, though with the consent of the defendant wife. However, as is well known, such a second marriage is not tolerated by any wife, and for this reason entering into a second marriage is in itself an act of cruelty towards the first wife which gives reason to live separately and gives reason to file complaints under section 498a of the IPC As such, the submission by the appellant husband’s lawyer that he had established the cause of cruelty in dissolving the marriage is without any basis.

Having said that, the court decided to reject the appeal.

Case title: Arun Kumar Singh vs Nirmala Devi

seat: Justices BB Baganthari and Jitendra Kumar

Case No.: Miscellaneous Appeal No. 701 of 2018

Appellant’s attorney: Ashok Kumar Garg

Defendant’s attorney: Shri was Pandey


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