HONOURABLE SRI JUSTICE B. PRAKASH RAO AND HONOURABLE SRI JUSTICE G.V. SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No. 2397 OF 2002 Dated 28th January, 2010. BETWEEN Smt. A.Jyothi Rani ….Appellant and A.Ravinder … Respondent. HONOURABLE SRI JUSTICE B. PRAKASH RAO AND HONOURABLE SRI JUSTICE G.V. SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No. 2397 OF 2002 JUDGMENT: (Per Hon’ble Sri Justice B. Prakash Rao) Heard both sides. The appellant herein is the wife. She ﬁled the present appeal aggrieved by the order and decree dated 28.01.2002 passed in O.P.No. 280 of 1999 on the ﬁle of the Family Court, Secunderabad, whereunder and whereby the learned Judge allowed the said OP filed by the respondent/husband granting divorce. The brief facts necessary for disposal of the present appeal are as follows: The marriage between the appellant and respondent was performed on 7.4.1982 as per the Hindu Rights and customs and two children were born to them during their wedlock. It was alleged that the appellant-wife has frequently come out of her paternal house and she has deserted the respondent/husband without any justiﬁable cause and valid reasons. Hence, the respondent/husband ﬁled the aforesaid OP under Section 13 of the Hindu Marriage Act for dissolution of their marriage. The said OP was contested by the appellant/wife mainly alleging that she was the victim for all the ill- treatment meted out to her by the respondent/husband as well as his parents. Based on the respective pleadings, the Court below framed the following point for consideration: “Whether there is a desertion on the part of the wife and whether the petitioner is entitled for dissolution of marriage?” During the course of enquiry, on behalf of the husband, P.Ws. 1 to 3 were examined. On behalf of the wife, she herself was examined as R.W.1 and got marked Exs.B.1 and B2. On a consideration of the oral and documentary evidence brought on record, the Court below having considered the fact that from the years 1982 to 1994 the wife deserted the husband several times and since the year 1994 they lived separately, ultimately found that the husband established desertion by his wife and as such he was entitled to decree of divorce as the marriage between them found to have broken down irretrievably and there was no possibility of living together. The main ground urged in this appeal is that the Court below allowed the application ﬁled under Section 13 of the Hindu Marriage Act recording a ﬁnding that the marriage between the appellant/wife and respondent/husband had broken down irretrievably, which is no longer a good ground to grant divorce and the same shall not constitute a valid reason for dissolution of marriage. Having considered the contentions on both sides and material on record, the Court below recorded that the marriage between the appellant/wife and respondent/husband had broken down irretrievably and accordingly dissolved the marriage between them. Grant of divorce on the ground of irretrievable break down of marriage fell for consideration before the Supreme Court in the case of Dutt Sharma Vs. Manju Sharma {2009(3) ALT 12 (SC)}. The Supreme Court, while referring to Section 13 of the Hindu Marriage Act, observed that no such ground of irretrievable break down of the marriage is provided by the legislature for granting a decree of divorce and that the Court cannot add such a ground to Section 13 of the said Act as that would amount to amending the Act which is a function of the legislature. In view of the principle laid down by the Apex Court in the case stated supra, it is not open for the Court below to grant decree of divorce on such ground. Though there are other allegations and counter allegations, but the Court below without recording a ﬁnding as to cruelty, adultery, desertion, etc., granted decree of divorce on the ground of irretrievable break down of the marriage. Curiously, no such ground of irretrievable break down of marriage has been mentioned for granting divorce under Section 13 of the Hindu Marriage Act. In that view of the matter, the matter requires fresh consideration by the Court below. For the foregoing reasons, the order and decree dated 28.01.2002 passed in O.P.No. 280 of 1999 on the file of the Family Court, Secunderabad, is set aside and the matter is remanded to the Court below for consideration afresh. The Court below is directed to dispose of the matter afresh keeping in view the principle laid down by the Apex Court, as referred to supra. Both parties are at liberty to adduce further evidence, if any. In the facts and circumstances of the case, there shall be no order as to costs. ----------------------------------------- JUSTICE B. PRAKASH RAO ----------------------------------------------- JUSTICE G.V. SEETHAPATHY DATED 28T H JANUARY, 2010. MSNR.