16 July 2024 Adultery Divorce >> Divorce Laws in India   |   Divorce Law >> Family Law  

On June 3, 2024, the Family Court of East District, Karkardooma Courts, Delhi, presided by Mr. Manish Khurana, delivered a judgment in the matter of Shivi Bansal v/s Gaurav Bansal that has sparked an appeal. The appeal is brought by the appellant/wife, who challenges the dismissal of her application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC). This article examines the key aspects of the appeal and the court's reasoning.

Background:

The dispute originates from a divorce petition filed by the respondent/husband, alleging three grounds for divorce: cruelty, adultery, and desertion. The appellant/wife contests the petition's validity on several fronts, arguing that the petition should have been dismissed based on procedural and substantive grounds.

Grounds for Appeal:

1. Desertion Claim: The appellant/wife asserts that the respondent/husband’s claim of desertion does not meet the legal requirements under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (HMA). This provision stipulates that desertion must be for a continuous period of not less than two years immediately preceding the petition. The appellant argues that since she cohabited with the respondent until July 2022, and the petition was filed in May 2023, the requirement for desertion was not fulfilled. The respondent claims desertion since November 2021, but the appellant contends this still does not satisfy the statutory period.

2. Adultery Allegations: The appellant challenges the adultery claim on the grounds of contradiction in the respondent's allegations and argues that the petition should be dismissed because the alleged adulterer was not made a party to the proceedings. The Family Court judge concluded that non-joinder of the alleged adulterer did not warrant dismissal of the petition, asserting that such a party is not essential for adjudicating the issue of adultery.

3. Judicial Precedent and Procedural Matters: The Family Court judge referenced the principle that a plaint cannot be rejected in part under Order VII Rule 11 of the CPC. This principle, supported by Supreme Court judgments, states that a plaint must either be accepted in its entirety or rejected as a whole. The Family Court's reasoning was that even if part of the petition's grounds might not be valid, the overall petition could not be dismissed merely for those defects, particularly when other grounds like cruelty were present.

Court's Reasoning:

The Family Court judge's decision emphasized that:

• Desertion: Even if the claim of desertion from November 2021 was taken as valid, it would not necessarily invalidate the petition as a whole due to the presence of other viable grounds such as cruelty.
• Adultery: The absence of the alleged adulterer as a party did not undermine the petition’s validity, as the evidence of adultery could be presented through other means, including witness testimony.
• Procedural Integrity: Rejection of a plaint in part, as opposed to a whole, is impermissible. The Court must either accept the petition in its entirety or reject it altogether if procedural deficiencies are found.

Conclusion:

The appeal was found to lack merit, as the Family Court's judgment adhered to established legal principles regarding the handling of divorce petitions and procedural requisites. The presence of a valid claim of cruelty provided sufficient grounds for the petition to proceed despite issues with other claims or procedural elements. The appeal was thus dismissed, and the pending applications were ordered to be closed, reinforcing the principle that a petition cannot be dismissed piecemeal under Order VII Rule 11 of the CPC. This case underscores the importance of procedural compliance and the need for a holistic approach in evaluating divorce petitions, reflecting judicial adherence to established legal standards.

  HINDU MARRIAGE ACT, 1955    Code of Civil Procedure, 1908