Case Note & Summary
The appellant, Chitra Sachin Mapara, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 4th May 2013 passed by the learned District Judge – 2, Kalyan. The District Judge had allowed Civil Appeal No.48 of 2012 filed by the respondent, Sachin Kumar Mapara, thereby setting aside the judgment and decree dated 22nd December 2011 in Marriage Petition No.260 of 2008 passed by the learned Civil Judge, Senior Division, Kalyan. The trial court had dismissed the husband's petition for divorce, but the appellate court granted divorce on the ground of irretrievable breakdown of marriage and directed the husband to pay permanent alimony of Rs.15,000 per month to the wife and Rs.15,000 per month to their daughter. The parties were married on 7th December 2002 at Dombivli as per Hindu rites and customs, and a daughter was born on 11th October 2003. The wife appealed to the High Court, contending that the appellate court erred in applying the no-fault theory of divorce based on irretrievable breakdown of marriage, which is not a ground under the Hindu Marriage Act, 1955. The High Court formulated three substantial questions of law: (I) whether the Lower Appellate Court was justified in applying the no-fault theory of divorce based on irretrievable breakdown of marriage though it is not a ground under the Hindu Marriage Act; (II) whether the Lower Appellate Court was justified in not framing an issue under Section 23(1)(a) of the Hindu Marriage Act; and (III) whether the findings of the Lower Appellate Court were perverse. The High Court held that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, and the appellate court erred in granting divorce on that basis. The court also noted that the appellate court failed to frame an issue under Section 23(1)(a), which requires the court to be satisfied that the petitioner is not taking advantage of his own wrong. The findings of the appellate court were found to be perverse as they were not based on proper appreciation of evidence. Consequently, the High Court allowed the second appeal, set aside the judgment and decree of the Lower Appellate Court, and remanded the matter to the Lower Appellate Court for fresh consideration in accordance with law.
Headnote
A) Hindu Marriage Act - Divorce - Irretrievable Breakdown of Marriage - Section 13, Hindu Marriage Act, 1955 - The Lower Appellate Court applied the no-fault theory of divorce based on irretrievable breakdown of marriage, which is not a ground for divorce under the Hindu Marriage Act, 1955. The court held that such a ground cannot be read into the statute and the appellate court erred in granting divorce on that basis. (Paras 2-3) B) Hindu Marriage Act - Procedure - Framing of Issues - Section 23(1)(a), Hindu Marriage Act, 1955 - The Lower Appellate Court failed to frame an issue under Section 23(1)(a) which requires the court to be satisfied that the petitioner is not taking advantage of his own wrong. The High Court held that this omission vitiated the judgment. (Para 3) C) Civil Procedure - Second Appeal - Perverse Findings - Section 100, Code of Civil Procedure, 1908 - The findings of the Lower Appellate Court were recorded without proper appreciation of evidence and were perverse. The High Court set aside the decree and remanded the matter for fresh consideration. (Paras 2-3)
Issue of Consideration
Whether the Lower Appellate Court was justified in applying the no-fault theory of divorce based on irretrievable breakdown of marriage, which is not a ground under the Hindu Marriage Act, 1955; whether the Lower Appellate Court was justified in not framing an issue under Section 23(1)(a) of the Hindu Marriage Act; whether the findings of the Lower Appellate Court were perverse.
Final Decision
Second appeal allowed. Impugned judgment and decree dated 4th May 2013 passed by the learned District Judge – 2, Kalyan in Civil Appeal No.48 of 2012 is set aside. The matter is remanded to the Lower Appellate Court for fresh consideration in accordance with law. Civil Application No.928 of 2013 disposed of.
Law Points
- Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act
- 1955
- Section 23(1)(a) requires court to be satisfied that petitioner is not taking advantage of own wrong
- Lower Appellate Court must frame issues on all relevant provisions
- Findings based on no-fault theory without evidence are perverse
