Can't Grant Judicial Separation As An Alternate Relief If Grounds For Divorce U/S 13 Hindu Marriage Act Not Proven: Kerala High Court

The Kerala High Court has recently held that if the grounds for divorce under Section 13 of the Hindu Marriage Act are not proven, the same grounds cannot be used for granting judicial separation as an alternate relief under Section 13-A.

Relying on the decision in Snigdha Chaya Devi v. Akhil Chandra Sarma (1992), the Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas observed:

"When the grounds for judicial separation under Section 13-A of the Hindu Marriage Act are the same as that for divorce, under Section 13 (founded on grounds other than excluded) and when the grounds for divorce under Section 13 of the Hindu Marriage Act are not made out, there cannot be a decree for judicial separation as an alternate relief. If the grounds, on which the petition for divorce was founded, were not made out, then the alternate relief of judicial separation also cannot be granted." 

The appellant-husband had claimed that the respondent-wife refused to consummate their marriage and that he later came to know that this was because she was having an illicit relationship with her own brother. A month after the respondent left the matrimonial home, the appellant claimed that she came back stating that she was pregnant. The appellant submitted that he was unwilling to accept the paternity of the child since their marriage had not been consummated. 

It is the appellant's allegation that the respondent told him that she had married him for namesake in order to get a father for her child, and further informed him that after delivering the child, she would agree to mutual divorce and would never claim paternity of the child on him. However, the appellant averred that the respondent did not keep her promise, and was not ready for a joint petition for divorce even after delivery. 

Thus, the husband filed the original petition for the dissolution of the marriage under Section 13(1)(ia) of the Hindu Marriage Act, citing matrimonial cruelty. The Family Court dismissed the OP but granted a decree for judicial separation. Additionally, without any prior pleadings or prayers, the Family Court declared the husband as the biological father of the child and awarded compensation of Rs.10 lakh to the child, though the child was not a party to the proceedings.

As a result, the husband filed an appeal before the High Court challenging the said judgment and decree. He argued that the Family Court had erroneously accepted the DNA test report (Ext.C1) without examining the expert, refused to grant a decree for divorce despite finding their marriage irretrievably broken, and improperly declared him as the biological father of the child and awarded compensation, even when there were no such prayers or pleadings.

The wife contended that the Family Court should not have granted a decree for judicial separation when there was no valid ground for divorce under Section 13, expressed her desire to continue the marriage, and that she believed that there was still a chance for reconciliation.

The Court found it strange that although the appellant had alleged illicit relations on the part of the respondent with her own brother, the divorce petition had not been filed seeking divorce on the ground of adultery, nor had the adulterer been arrayed as a party to the case. It thus held that the husband's allegations of matrimonial cruelties based on his wife's alleged illicit relationship with her brother were not substantiated.]

The court referred to precedents and clarified that a decree for judicial separation can be granted as an alternate relief in a divorce proceeding only when the grounds for divorce are proven. In this case, since no valid grounds for divorce under Section 13 of the Hindu Marriage Act were established, the husband was not entitled to a decree for judicial separation.

"The case on hand reveals that, the appellant was entertaining some fanciful doubts against his wife with her own younger brother, and he was making all sorts of wild allegations against her, and he even challenged the paternity of the child, born in their lawful wedlock. He even sought for DNA test to prove that he was not the biological father of the child delivered by the respondent. So the long separation, if any, happened only due to the fault of the appellant," the Court added, while rejecting the appeal by the appellant challenging the dismissal of his plea seeking divorce. 

Additionally, it was found that the Family Court had wrongly declared the husband as the biological father of the child and awarded compensation without proper pleadings or prayers from either party.

"Likewise, the child was not a party to the proceedings and there was no prayer for any maintenance or compensation to the child. Even then, the Family Court awarded compensation of Rs.10 lakh to be deposited by the appellant, in the name of the minor child. That also was in excess of the jurisdiction expected to be exercised by the Family Court in a divorce petition filed by the appellant against his wife, on the ground of matrimonial cruelties," it added. 

The reliefs granted by the Family Court declaring paternity of the child and awarding compensation to the child were thus set aside, while the dismissal of the plea for divorce was upheld. 

Additionally, the appellant was also directed to pay the costs to the wife in both appeals.

Counsel for the Appellant: Advocates M.R. Ananakuttan, Mahesh Anandakuttan, and M.A. Zohra

Counsel for the Respondents: Advocates V. Suresh, and G. Sudheer

Citation: 2023 LiveLaw (Ker) 581 

Case Title: S v. D & connected matter

Case Number: MAT.APPEAL NO. 148 OF 2014 and MAT.APPEAL NO. 245 OF 2014

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