The Allahabad High Court has held that divorce petition cannot be dismissed under Section 23 (1) (b) of the Hindu Marriage Act, 1955 if acts of cruelty which were once condoned by the spouse are repeated.
The Court held that merely because in the petition it was stated that the husband had condoned the adultery and lived with the wife, it cannot be said that subsequent adultery by the wife was condoned. The Court held that one paragraph of the petition cannot be read in isolation to the other averments made in the divorce petition. Since the wife had continued her relationship outside of marriage, the Court held that there was cause of action for filing the divorce petition.
Section 23 (1) (b) of the Hindu Marriage Act provides that where acts stated in the divorce petition have been condoned of or where the act alleged is cruelty and the same has not been condoned the Court shall decree relief accordingly. Order VII Rule 11(d) CPC provides for rejection of plaint where from the statements made in the plaint, the suit appears to be barred.
The bench comprising of Justice Vivek Kumar Birla and Justice Donadi Ramesh held,
“In our considered opinion even if there is condonation of an act, or even acts but subsequently the same are revived or repeated and there is specific statement regarding such repetition in other paragraphs of the plaint, by reading one paragraph in isolation, ignoring the other paragraphs, would not be covered by Section 23 (1) (b) of the Hindu Marriage Act, 1955 to become a ground for rejection of plaint in Order VII Rule 11 (d) CPC as there can be no such condonation of act/acts, if the acts are being repeated.”
Respondent-husband filed a divorce petition on grounds of cruelty and adultery. Appellant-wife moved an application under Order VII Rule 11(d) CPC read with Section 23 (1) (b) of the Hindu Marriage Act. The application was rejected on grounds that such application could not be entertained at the stage of cross-examination of DW-1 and the case had been expedited by the High Court.
Counsel for appellant-wife argued that since the act of the wife had been condoned by the husband in his divorce petition, the application ought to be allowed and the petition was liable to be dismissed.
The Court observed that one paragraph of the divorce petition cannot be read in isolation to the other averments made in the petition. The Court observed that even though the husband had agreed to give the wife a second chance, she continued to have a relationship outside of marriage.
The Court held that merely because the husband had condoned the actions of the wife once, does not mean there was no cause of action after that one incident.
“Even otherwise, single condonation of any act or acts by itself, would not be sufficient to reject the plaint once there is allegation that subsequent to condonation of the such acts, the same were being repeated.”
The Court held that any act is condoned with the condition that the same shall not be repeated. However, as per the divorce petition, the act condoned once was being repeated.
Even otherwise, the Court held that the divorce petition was not filed solely on grounds of adultery. The husband had sought divorce on grounds of cruelty also.
Accordingly, the appeal filed by the appellant-wife was dismissed.
