Whether prayer for divorce can be made alternatively in the petition for nullity if filed within one year?
(ia) of the Hindu Marriage Act on the ground of cruelty. Section 14
is applicable to a petition for divorce which is filed under Section 13
of the Hindu Marriage Act and not a petition for nullity under
Section 11 or 12. Nullity of marriage is altogether of different status
than divorce. Therefore, if there is a prayer for nullity of marriage,
the petition is to be presented within one year as subSection 2 of
Section 12 lays down that no petition for annuling a marriage on
the ground specified in Clause (c) of SubSection 1 shall be
entertained if (i) petition is presented more than one year after the
force has ceased to operate or as the case may be, the fraud has
been discovered. Thus, the petition was filed not under Section 13
for divorce but, for nullity under Section 12. Filing of the petition
within one year from the discovery of the fraud or after the force
has been ceased to operate is mandatory and, therefore, the petition
was rightly filed within time under Section 12. However, in the said
petition, there is an alternative prayer for divorce on the ground of
cruelty. In the petition, there are averments in respect of the
instances of cruelty and, therefore, alternative relief of divorce is
prayed as the marriage was consummated between the parties.
Alternative prayer of divorce in the petition for nullity is neither
contrary nor inconsistent and can be entertained by the Court. The
Judge, Family Court is not found at fault taking view that the Court
when heard the matter and the evidence of the parties was recorded
found that the parties were residing separately since March2007,
i.e. for more four years so bar under Section 14 will not come in the
way. We are in agreement with the pragmatic approach taken by
the learned Judge, Family Court while entertaining the petition
under Section 13(1)(ia) though it was presented within one year
from the date of the marriage. One important point is also to be
noted that if a party wants to seek an alternative relief for grant of
decree of divorce in a petition for nullity of marriage filed within
one year, then it will be cumborsome for the party to file anotheral
petition for divorce after one year. This leads to multiplicity of the
proceedings. Hence, the prayer for divorce can be made
alternatively in the petition for nullity if filed within one year.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL No. 166/2014
WITH
CROSS OBJECTION ST. No. 5743/2014
Dr. Rajasi @ Swapna w/o Shashank Dandge,
.....VERSUS.....
Dr. Shashank s/o Vitthalrao Dandge,
CORAM: B.R. GAVAI AND
MRS.MRIDULA BHATKAR, JJ.
DATE : 6TH
JANUAR Y , 2015.
Citation; 2015 (6) MHLJ872
https://www.lawweb.in/2016/01/whether-prayer-for-divorce-can-be-made.html
