Hindu Marriage Act, 1955
Section 9—Rejection of application for restitution of conjugal rights and grant of judicial separation—Appeal—Parties were not living together for last nine years—Court can also take into account the subsequent event where wife has not shown any interest to live together with the husband—Wife is residing at Australia and has not made any effort/pains to contact her counsel or to participate in the proceedings—No useful purpose would be served in entertaining the appeal of the wife regarding her claim based on Section 9 of the Hindu Marriage Act.
[Para 40]
Section 13(1)(A)—Appeal against order granting decree of judicial separation instead of passing a decree of divorce—Appeal—Objection of wife with regard to maintainability of appeal—Clause 1(A) of Section 13 of the Hindu Marriage Act is a fresh and independent enabling provision available to either party to seek divorce after one year from the date of passing of decree of judicial separation—Provision of Section 13(1)(A) of the Act is not an impediment for maintainability of appeal—Objection fade into insignificance.
[Paras 18 to 20]
Section 13A—Alternate relief in divorce proceedings—Provision is clear which enables the Court to pass a decree of judicial separation in a case which is pregnant with a prayer for grant of divorce of decree—Discretion of court must be exercised judiciously and it cannot be based on unjustifiable reasons.
[Paras 32 & 33]
Section 13—Grant of decree of judicial separation instead of passing a decree of divorce—Appeal—Conduct of wife clearly falls within the ambit of cruelty—Once a clear finding of ‘cruelty’ and ‘mental cruelty’ is recorded against the wife, the Court below was not justified in declining grant of decree of divorce and passing the decree of judicial separation—Despite positive behaviour of husband, wife’s behaviour towards him and his parents was painful—Making baseless allegation relating to illicit relation with another woman and real sister certainly falls within the ambit ‘cruelty’—No fault can be found in the regard in the finding given by the court below—Court can also take into account the subsequent event where wife has not shown any interest to live together with the husband—Wife is residing at Australia and has not made any effort/pains to contact her counsel or to participate in the proceedings—After forming a definite opinion regarding ‘cruelty’, in a case of this nature it was not proper for the court below to decline the decree of divorce and in lieu thereof grant decree of judicial separation—Moreso, when subsequent facts and entire factual backdrop shows that it is not possible for the parties to live together—Impugned judgment set aside to the extent the court below granted decree of judicial separation in place of decree of divorce—Impugned judgment stand modified and marriage stands dissolved.
[Para 25, 36, 40 & 49]
Section 25—Permanent alimony—Prayer for—In absence of application preferred under Section 25 of the Hindu Marriage Act, no directions can be issued for grant of permanent alimony—Apart from this, for deciding the aspect of permanent alimony various factual aspects regarding income, expenditure etc. of the parties are required to be taken into account by the court—Sufficient complete material is not available before the High Court on the basis of which any conclusion regarding alimony can be drawn—Prayer for grant of permanent alimony is declined.
[Paras 46 & 48]
Precedent
Per incuriam—If previous binding judgment is not considered by the subsequent Bench, the judgment of subsequent Bench is per incuriam.
[Para 46]
Precedent is what is actually decided by the Apex Court and not what is logically flowing from it.
[Para 47]