The High Court of Uttarakhand on Thursday ruled that the proceedings for judicial separation under Section 13-A of the Hindu Marriage Act, 1955 will not be barred by the principle of red judicata, due to prior proceedings for restitution of conjugal rights under Section 9 of the Act.
“If both the provisions if are scrutinized harmoniously, the legislature in all its wisdom had provided that the two sections i.e. section 9 and section 13-A of Hindu Marriage Act, 1955. Provided to meet a separate set of contingencies, while maintaining a matrimonial relationship and its continuance. Under no set of circumstances or reasonableness, Section 9 deals or touches the issue, which is either covered by Section 13 or by Section 13-A of the Hindu Marriage Act, 1955. Thus, both the provisions are divergent to one another one aims to bring family together and the other is a judicial process to separate the family for the grounds provided under Section 13 of Hindu Marriage Act, 1955 and to meet a different purpose. Hence adjudication made by the Court under any of the aforesaid provisions, this Court feels would not attract section 11 of the Code of Civil Procedure to create a Bar in filing of a subsequent suit under either of the provisions under Section 9 or 13-A of Hindu Marriage Act, 1955,” the Bench comprising Justice Rajiv Sharma and Justice Sharad Kumar Sharma observed.
The Court was hearing a Petition filed by one Mr. Balveer Singh, challenging a judgment passed in September, 2015, wherein the Court had held that proceedings under Section 13A of the Act will not be barred by res judicata on the basis of prior proceedings under Section 9 of the Act. Mr. Singh had now contended that since the relief under Section 9 has been decreed, the relief under Section 13-A would be barred under Section 11 of the Code of Civil Procedure.
Terming such contention a “misconception”, the Court observed, “This analogy is not accepted for the rational that in the case at hand, Section 9 was decreed prior to file Section 13-A. It will not have any effect on Section 13-A, for the simple reason because if section 9 is either decreed or dismissed, it will not take away a right of a party to file Section 13 for dissolution of marriage at any subsequent stage. Hence also, from this view point, Section 11 will not be attracted and both the proceedings either under Section 9 and Section 13-A is to be decided independently.”
The Court therefore directed the Family Court, District Udham Singh Nagar at Rudrapur to decide the suit under Section 13-A of Hindu Marriage Act, 1955 as expeditiously as possible, keeping in view the provisions contained in Section 21-B of the Hindu Marriage Act, 1955.