Allahabad High Court
The Allahabad High Court has held that Hindu marriage is not a contract which can be dissolved by consent. A Hindu marriage can only be dissolved or terminated on limited grounds under a legal process. The court said that the court could have taken the evidence and declared the marriage void if both parties had alleged impotence, but the lower court ignored it in this case.
The order was passed by a division bench of Justice SD Singh and Justice Donadi Ramesh accepting the appeal of a woman (Pinky). Advocate Mahesh Sharma argued the appeal. It is known that the appellant was married to Pushpendra Kumar on 2 February 2006. Pushpendra was in the army. While the child was in her womb, the wife came to her maternal uncle’s house on 31 December 2007. Thereafter, the husband filed for divorce on 11 February 2008.
The situation changed after the birth of the child
The wife also agreed and said that she did not want to live with her husband’s restrictions. The case was pending in court. Mediation efforts were not successful. Meanwhile, when the second child was born, the wife withdrew her consent to the divorce saying that she could bear the child. In this regard, he filed another reply in the court. The husband objected to the second answer. A hearing date was also fixed, but the court passed the divorce decree. After this, the decision of the court was challenged in the High Court on behalf of the woman.
‘The court did not consider the second statement’
The High Court said that the opposition could not prove the grounds for divorce. Circumstances changed, the wife did not support the first reply filed and filed a second reply. Which the court did not consider. The wife’s consent was not present at the time the court ordered the divorce by consent. In such a situation, the marriage cannot be dissolved by consent. A lower court has no power to compel a party to stick to his original statement. The court erred.
The lower court erred in passing the decree
The court said that after the divorce suit was filed, the case remained pending for 3 years. The wife, in her first statement, agreed to the divorce. After this, due to failure of mediation and change of circumstances due to birth of second child, the wife filed another written statement and withdrew her consent for divorce. The court should have heard the objections and replies of the husband and decided the case on merits. The court erred in fixing the date for hearing the husband’s objection on the wife’s second written statement and passing the divorce decree.
Notice to pass the order again
The High Court has set aside the March 30, 2011 order of Additional District Judge Bulandshahr and the divorce decree. Also, the Subordinate Court is instructed to pass the order afresh after hearing the husband’s reply on the second reply of the wife as a rule, if the arbitrator fails to preserve the marriage.
