S. D. SHAH, J. ( 1 ) THIS Civil Appeal is directed against the judgment and decree of the City Civil Court at Ahmedabad in Hindu Marriage Petition No. 248 of 1984 which was filed jointly by the appellant-husband and respondent-wife for divorce by mutual consent under S. 13b of the Hindu Marriage Act, 1955 (hereinafter referred to as the said "act" ). By impugned judgment and decree dated 17th October, 1986, the learned trial Judge has dismissed the petition for divorce by mutual consent. The appellant husband is aggrieved by such judgment and decree and hence he has approached this Court by way of this Civil Appeal. ( 2 ) AT this stage it would be necessary to briefly state the facts which led to filing of Hindu Marriage Petition No. 248 of 1984 which are as under : (i) The marriage between the appellant-husband and the respondent-wife was solemnised on 3rd December, 1970 according to Hindu rites at Ahmedabad and thereafter the husband and wife resided together at the residence of the husband at Ahmedabad. It was a love marriage by the parties to the marriage, which developed during their college days when they accepted each other to be a good match for becoming the life partner which love relation ultimately culminated into solemnisation of Hindu marriage. (ii) After some time (pleading in this regard is not very clear) but within a span of four to five years, there were serious differences of opinion between the parties and as averred in the memo of petition for divorce by mutual consent, it was not possible for them to stay together and so since 30th June, 1983 they have started residing separately. It is factually a long period of 13 years after marriage but then during course of reconciliation proceeding it was disclosed that within five years of marriage actually serious differences of opinion arose between the husband and the wife. (iii) In the plaint of the joint petition for divorce by mutual consent both the parties further averred that since 30th June, 1983 till they filed the petition on 21st august, 1984, they had not lived together as husband and wife and there was no cohabitation between the parties. (iii) In the plaint of the joint petition for divorce by mutual consent both the parties further averred that since 30th June, 1983 till they filed the petition on 21st august, 1984, they had not lived together as husband and wife and there was no cohabitation between the parties. Both of them being highly educated and intelligent and independently manning their own affairs and businesses, they realised that their marriage has failed and therefore, they have decided to seek a dissolution of the marriage of their own free will, without any pressure or undue influence from any quarter. They also averred in the petition that all the matters regarding ornaments, clothes and other movables have been settled between them and wife has renounced her right to claim maintenance and that they have simply sought a decree of dissolution of the marriage by mutual consent. (iv) Since the Hindu Marriage Petition was filed on 21st August, 1984, in view of the provisions of S. 13b (2), at the expiry of period of six months, motion of both the parties was required to be made but on 4th of April, 1985, the appellanthusband alone moved an application at Exhibit 4 for taking the Hindu Marriage petition on Board and to proceed to decide the same and the matter was accordingly listed before the City Civil Judge. On 15th of April, 1985, the hearing of the petition commenced and the same was adjourned at the joint application of the Advocates of the husband and wife. Thereafter on 24th April, 1985 and 26th June, 1985, the matter was notified before the Court, but, due to disturbances in the City of Ahmedabad and the sudden strike of the staff, it was adjourned to 6th of August, 1985. On 6th August, 1985, wife engaged another Advocate who filed his Vakalat Patra and at the request of the wife the hearing was adjourned. On 9th September, 1985, rojkam of the Court reads that at the oral request, the matter was adjourned to 16th September, 1985 and on that date attempts were made by the learned trial Judge to bring about reconciliation between the parties in his Chamber. On 9th September, 1985, rojkam of the Court reads that at the oral request, the matter was adjourned to 16th September, 1985 and on that date attempts were made by the learned trial Judge to bring about reconciliation between the parties in his Chamber. It appears that with the change in allocation of work, the matter was assigned to another Judge and on 30th September, 1985, he also once again made attempts in his Chamber to bring about reconciliation between the husband and the wife, but the same was not possible and therefore, it was adjourned to 10th of October, 1985. On 10th of October, 1985, at Exhibit 7, a joint application was tendered by the parties for adjournment on the ground that attempts to bringing about compromise between the parties were afoot and therefore, hearing should be adjourned. On 30th October, 1985, once again joint oral request was made on the very ground for adjournment. On 9th December, 1985 application at Exhibit 8 was tendered jointly by both the parties for adjournment on the ground that attempts to bringing about compromise were in progress and therefore, the matter should be adjourned. On 16th December, 1985 and 10th January, 1986 hearing was once again adjourned at the request of the Advocate of the wife. It appears that thereafter either at the request of the party, namely, wife and once at the joint request of the Advocates of the parties, the hearing was adjourned from time to time and in all such applications, where joint request was made it was stated that talks of compromise/settlement between the parties were afoot and therefore, hearing of the petition should be adjourned. (v) It will not be out of place to mention that the appellant-husband remarried with one Sonia on 18th August, 1985 and that a male child named Prasad was born out of the said wedlock. (vi) On 27th March, 1986, the wife gave an application at Exhibit 11, wherein in Paras 2 and 3 following averments were made :"para 2 : The applicant has been staying separately since 30th June, 1983 and this has enabled the present applicant No. 2 (wife) to give enough thought to the matter. (vi) On 27th March, 1986, the wife gave an application at Exhibit 11, wherein in Paras 2 and 3 following averments were made :"para 2 : The applicant has been staying separately since 30th June, 1983 and this has enabled the present applicant No. 2 (wife) to give enough thought to the matter. This applicant, looking to the graveness of the situation and the consequences that would follow, has realised that dissolution of their marriage is not in the interest of the applicant and that there is full scope for reunion and there is every possibility to save their marriage. Para 3 : This applicant No. 2, therefore, revokes, the consent given, earlier for divorce by mutual consent and she prayed that petition for divorce by mutual consent be dismissed. It may be noted that such application is signed and solemnly affirmed by the wife and it is dated 27th March, 1986. "such application was objected to by husband by making endorsement that the contents of the application were not true and were specifically denied and that the wife has no right to revoke the consent which she has legally granted and that such consent is valid. He also applied for time to permit him to file detailed reply to the application. (vii) On 9th April, 1986, the husband filed detailed affidavit-in-reply denying each and every averments made in the application by the wife and also denied her right to withdraw or revoke consent which was once given after the expiry of the period of 18 months. He also prayed that consistent with the prayer made in the joint Hindu Marriage Petition, decree for divorce by mutual consent should be passed. To such application, the wife filed affidavit-in-rejoinder at Exhibit 13 on 18th April, 1986 and the argument on Exhibit 11 filed by the wife to permit her to revoke or withdraw her consent were heard. (viii) It is thereafter that the impugned judgment and decree was rendered by the learned City Civil Judge dismissing the petition for divorce by mutual consent. (viii) It is thereafter that the impugned judgment and decree was rendered by the learned City Civil Judge dismissing the petition for divorce by mutual consent. (ix) It is also pertient to note that the father of the appellant-husband has expired on 10th December, 1992 and the respondent-wife filed another suit on 1st of August, 1994 in the City Civil Court for declaration that the judgment and decree of the city Civil Court dated 17th October, 1986 in Hindu Marriage Petition was still subsisting and that relation of appellant-husband with Sonia were illegal and that the child out of such marriage was illegitimate and that the appellant-husband should be restrained from describing Sonia as his wife. (x) On 15th September, 1994, the appellant-husband also filed criminal complaint under S. 497 and 498 read with S. 347 of the Indian Penal Code. (xi) The respondent-wife filed criminal complaint on 14th November, 1994 against the appellant-husband and Sonia under S. 494 of the I. P. Code on the ground that the second marriage of the husband with Sonia was bigamous marriage and was prohibited under S. 17 of the Hindu Marriage Act, 1955. ( 3 ) ON aforesaid fact situation, it becomes clear that all the three ingredients of S. 13b (1) were satisfied when a joint petition for divorce by mutual consent was filed by the husband and the wife, namely, (i) they have been separately residing for a period of one year or more; (ii) they have not been able to live together; and (iii) they have mutually agreed that the marriage should be dissolved. From the provisions of S. 13b (2) which are quoted hereafter, it becomes clear that after the expiry of period of six months from the date of the presentation of the petition for divorce by mutual consent, a motion is required to be made by both the parties to the Court for grant of divorce by mutual consent. In the present case, since the petition was filed admittedly on 24th of August, 1984 the appellant-husband did move an application on 4th of April, 1985 for taking the matter on Board and to proceed to decide the same as it was a petition for divorce by mutual consent between the parties. This Application at Exhibit 4 is not a joint motion, but motion by the husband. This Application at Exhibit 4 is not a joint motion, but motion by the husband. ( 4 ) AS per the provision of S. 13b (2) if such motion is made not earlier than six months after the date of the presentation of the petition and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied after hearing and making necessary enquiry, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of a decree. In the present case, from 4th April, 1985, i. e. , after the expiry of period of six months from the date of the presentation of the petition, one of the parties to the marriage has made motion as stipulated by S. 13b (2) of the said Act and from the factual details given hereinabove, it appears that the matter was adjourned from time to time either at the joint request of the parties or at the request of the advocates of one of the parties, and in a joint application for adjournment, the adjournment was sought on the ground that the talks of settlement/compromise between the parties were in progress and that, therefore, the matter was required to be adjourned. From 4th of April, 1985 upto 27th of March, 1986, i. e. , the date on which application at Exhibit 11 was tendered by the wife revoking her consent, at no point of time the wife has withdrawn her consent or has hinted at the possibility of reunion between the parties. It is true that in the joint application given by the parties it was stated that talks of settlement/compromise were in progress between the parties and it is difficult for this Court to guess or even reasonably assume as to whether such talks were referable to reconciliation because the parties to the marriage have fallen apart within 4 to 5 years of their marriage and after expiry of about 8 to 9 years thereafter also, they have filed the joint petition for dissolution of marriage as back as 24th August, 1984, wherein they have clearly averred that it was not possible for them to stay as husband and wife and that they have been staying separately since March, 1983. In the aforesaid fact situation it is the submission of the appellant-husband that since the date of the institution of Hindu marriage petition for divorce by mutual consent on 21st August, 1984, till the expiry of the period of 18 months which would expire in February, 1986, the respondentwife has never revoked or withdrawn her consent and that hearing of the petition was adjourned from time to time on the ground of possible settlement/compromise between the parties. At no stage upto 27th of March 1986, the wife has when she filed Exhibit 11, withdrawn or revoked her consent which was freely and voluntarily and without any duress given by her nor has she expressly stated to the Court at any point of time that there was possibility of reunion between the parties more particularly when the appellant-husband has remarried with one Sonia on 18th of august, 1985. It was submitted that since the period of 18 months was over and since petition was not withdrawn nor was the consent revoked by the wife, the Court was required to pass a decree for dissolution of marriage as the words employed in S. 13b (2) provide that "court shall on being satisfied after hearing the parties and after making sufficient enquiry as it thinks fit that the marriage has been solemnised and that the averments in the petition are true, pass a decree for divorce. The satisfaction of the Court is also referable to ascertaining that marriage has been solemnised between the parties and that ingredients of S. 13b (1) were satisfied and that the averments made in the petition were true and beyond such satisfaction, no further satisfaction was required to be reached. In the present case, since all ingredients of S. 13b (1) were satisfied and since upto a period of 18 months from the date of the presentation of the petition the wife has at no point of time withdrawn or revoked her consent, it was obligatory upon the Court to pass a decree for divorce by mutual consent. In the present case, since all ingredients of S. 13b (1) were satisfied and since upto a period of 18 months from the date of the presentation of the petition the wife has at no point of time withdrawn or revoked her consent, it was obligatory upon the Court to pass a decree for divorce by mutual consent. It was also very strenuously urged before this Court that it was the matrimonial jurisdiction which the trial Court was exercising and when it was found that the parties were not staying together as husband and wife since a very long time and that they had difference of opinion within few years of their marriage life and that the life was not blissful, happy married life between two of them and in absence of any attempt on either side to resume marital relations, it was reasonable, just and proper to record the conclusion that the marriage was irretrievably broken and that very essence of marriage life was lost. In such a fact situation, the continuance of marriage between the spouses at the instance of the wife after full knowledge that her husband has remarried, ought not to be encouraged as application at Exhibit 11 tendered by her was not really realisation on her part of possibility of reunion and that after their separation they had never lived together as husband and wife and therefore, to her own knowledge, her application was a mere ruse and a pretext based on jejune and non-existent ground to harass and to perpetuate agonies of the husband and to make his life more miserable. It was also suggested before this Court that immediately after the husband tendered his application for taking the matter on Board at the expiry of period of six months and to decide the same, she did not seek any adjournments for obtaining legal advise or of withdrawing for revoking her consent, but she went on applying for adjournment and even joint applications for adjournments were made for bringing about settlement/compromise between the parties which in fact was not referable to matrimonial settlement or matrimonial reunion as was for the first time suggested in the application at Exhibit 11. It was more so when three Honble Judges of the City Civil Court made attempt to bring about reconciliation between the parties and noted that no reconciliation was possible and in such a situation the talk of realisation on the part of the wife that reunion was possible was not a swallowable fact and that it was crystal-clear attempt on her part to harass, agonise and render the life of the husband absolutely miserable. ( 5 ) IN the aforesaid fact situation the learned trial Judge proceeded to decide the aforesaid Hindu Marriage Petition. It is clearly noticed that all ingredients required to be stated on oath under sub-S. (1) of S. 13b for divorce by mutual consent were clearly stated in the petition filed on 21st August, 1984. He has also noted that there was no cohabitation between the parties thereafter and that they have realised that their marriage has failed. He has also noted that thereafter on several occasions or dates, the matter was placed on Board, but was adjourned for some reasons or other and that thereafter application at Exhibit 11 was tendered by the wife. The husband has filed his reply to Exhibit 11 on 9th April, 1986 at exhibit 12 and the wife has once again filed rejoinder affidavit at Exhibit 13 reiterating that what was stated by her in her application at Exhibit 11 was true and that she was entitled to revoke her consent at any time. When the learned trial judge was called upon to decide the question as to whether the mutual consent given by the spouses to the marriage, for divorce would be withdrawn at any time by any of the parties to the marriage, one view of judicial opinion taken by the Bombay high Court, namely, that consent once given, cannot be revoked unilaterally by one of the spouses, was pressed into service by the appellant-husband. On the other hand, the second opinion taken by second group of High Courts, to which reference shall be made hereafter, was also pressed into service by the wife by relying upon the decision of the Karnataka High Court, where the High Court took the view that the Court cannot grant decree on a motion preferred unilaterally by the husband only and that the consent given must continue and must be a valid and subsisting consent till the case is heard and decree is passed. Having referred to the divergent opinions amongst two groups of High Courts, the learned trial Judge noted that three ingredients for divorce by mutual consent can be said to subsist only if the conditions regarding mutual agreement or consent has not ceased to exist. According to the learned trial Judge, these conditions are : (i) parties have lived separately for one year, (ii) parties have not been able to live together and that such averments have been found to be true by the Court and (iii) they have mutually agreed that the marriage should be dissolved. However, the learned trial Judge put a question as to whether one of the spouses can or cannot change his/her mind to state that he/ she is not prepared to seek divorce at any time before the decree for divorce can be granted. He also found that S. 13b (2) was enacted with a view to provide sufficient time or interregnum to the parties to think over the matter and see whether there is any possibility of any reconciliation. However, he found that if at any point of time any of the spouses think that reconciliation was possible and/or that divorce by mutual consent was not in their interest, he or she must have a right to revoke the consent and on such reasoning, he dismissed the petition and refused the divorce. It may be stated that no oral or further affidavit evidence was recorded except the aforesaid applications to which reference is specifically made. It may be stated that no oral or further affidavit evidence was recorded except the aforesaid applications to which reference is specifically made. Legal Submissions ( 6 ) M/s. G. N. Desai and M. D. Pandya, learned Counsels appearing for appellant-husband made following legal and factual submissions : (i) The judgment and decree of the learned City Civil Judge, dated 17-10-1986 dismissing the Hindu Marriage Petition No. 248 of 1984 are not sustainable in law, more particularly, when the Hindu Marriage Petition filed by appellant-husband and respondent-wife was one for dissolution of marriage by mutual consent under the provisions of S. 13b of Hindu Marriage Act, 1955 (hereinafter referred to as the "said Act" ). The paramount object with which the S. 13b of the said Act came to be introduced was lost sight of by the learned City Civil Judge, and in fact, by the judgment and decree under appeal, the legislative intent and purpose behind the enactment of the provision is not only not achieved but is miserably defeated and frustrated. (ii) The judgment and decree of the learned City Civil Judge dismissing the petition for divorce by mutual consent are also vitiated inasmuch as provisions of s. 13b (2) are not followed in letter and spirit and interpretation placed on the provision would, rather than promoting and achieving the object of introduction of S. 13b, render the very provision meaningless and ineffective. (iii) The learned trial Judge having found, as a matter of fact, that in the Hindu marriage Petition filed by the appellant-husband and respondent-wife all the requirements of S. 13b (1) were satisfied, and having further recorded the finding that the provisions of S. 23 (1) (bb) were also not attracted in the facts and circumstances of the case, grossly erred in not passing decree of dissolution of marriage by mutual consent, especially when attempts of reconciliation have failed before three Honourable Judges of the City Civil Court including the trial Judge. ( 7 ) ON the other hand, M/s. R. K. Shah and M. R. Shah, learned Counsels appearing for respondent-wife very strenuously urged before this Court that the judgment and decree dismissing the application for divorce by mutual consent are, in every respect, legal, proper, just and fair, not calling for any interference by this Court. ( 7 ) ON the other hand, M/s. R. K. Shah and M. R. Shah, learned Counsels appearing for respondent-wife very strenuously urged before this Court that the judgment and decree dismissing the application for divorce by mutual consent are, in every respect, legal, proper, just and fair, not calling for any interference by this Court. Their main counter-submissions are as under : (i) The trial Court has absolutely, legally and validly interpreted the provisions of Secs. 13b (1) and (2), and more particularly, on correct interpretation of sub-sec. (2) has rightly refused the decree of dissolution of marriage by mutual consent as it has found, as a matter of fact, that the respondent-wife who was party to the petition for divorce by mutual consent withdrew her consent to dissolution of marriage by mutual consent and once such consent was withdrawn, the Court has no power or authority in law to grant decree of dissolution of marriage by mutual consent. (ii) The mutual consent of both the parties must continue to exist and subsist till a decree of dissolution of marriage by mutual consent is passed, and any spouse to the marriage is at liberty to withdraw such consent in which case S. 13b would not operate and the Court of law will have no jurisdiction or authority and has no option other than one of dismissing the petition. This position of law, according to learned Counsel appearing for the respondent-wife is well established by the binding precedent of the Apex Court in the case of Smt. Sureshta Devi v. Om prakash, reported in AIR 1992 SC 1904 . (iii) Reference to or resort to the provisions of S. 23 (1) (bb) was uncalled for, unwarranted and irrelevant in the fact situation obtaining before the trial Court because even if the trial Court was satisfied that in the petition consent of either of the spouses has not been obtained by force, fraud or undue influence, it cannot grant relief to the parties if absolutely free and voluntary consent is withdrawn by the party under S. 13b (2) of the said Act. ( 8 ) THIS Court shall now proceed to deal with the aforesaid legal submission in seriatim, but before undertaking that exercise, it would be advisable to refer to the paramount legislative object and the purpose for introducing S. 13b in the said Act by Marriage Laws (Amendment) Act, 1976. Original Hindu Marriage Act, 1955, as it stood prior to its amendment, did not provide for dissolution of marriage solemnised under the provisions of the said Act by mutual consent or agreement between the spouses to dissolve the marriage. Even in cases of irretrievable break down of marriage between the spouses or unbridgeable rupture in the marital tie despite all attempts at reconciliation having failed, the Courts of law were helpless and were not in position to provide against or redress enormously enhancing miseries of both the spouses by continuance of such marriage. It may be noted that the special Marriage Act, 1954 contained a provision which is in pari materia with the newly added S. 13b but when Hindu Marriage Act, 1955 was brought into force, the Parliament did not introduce such a provision in the said Act. The reasons why such absolutely essential amendment was brought and introduced by introduction of S. 13b in the year 1976 are not very far to be traced. In the 71st Report on the Hindu Marriage Act, 1955 submitted by the Law Commission, under the caption "irretrievable Break-down of Marriage" as a ground of divorce, in para 6. 5 it is observed as under :"moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be fared in life, an experience of the joy that comes from enjoying, in common, thing of the matter and of the spirit and from showering love and affection on ones off-spring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage - "break down" - and if it continues for a fairly long period, it would indicate destruction of the essence of marriage - "irretrievable break down". Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage - "break down" - and if it continues for a fairly long period, it would indicate destruction of the essence of marriage - "irretrievable break down". ( 9 ) SINCE the marriage between two spouses solemnised according to Hindu rites is not a mere contract, and has a special sanctity attached to it, the thought of dissolution thereof by mutual consent was initially not accepted. With the passage of time and enormous change in living standards and life style it was realised that living apart by the spouse without any justifiable cause is the negation of the sharing of happiness which matrimonial relations shower on the spouses. When two spouses bid adieu to each other permanently by definite resolution and intention to live apart, the situation is indicative of disruption of or impossibility of continuance of marriage - break down of marriage. This is the stage of "irretrievable break down of marriage" where the rupture in marital life has become unbridgeable and that to continue such matrimony would, in substance, amount to imposing permanent stage of miseries on two spouses. When the marriage between two spouses is dead emotionally or mentally, rationally and practically, in every respect, continuance of marital relation is, in substance, prolonging agonies of spouses and affliction of cruely by continuance of marriage which simply remains marriage for the sake of marriage. ( 10 ) IT may be stated that even in England by virtue of S. 1 of the Matrimonial causes Act, 1973, the sole ground on which a petition for divorce may be presented to the Court by either party to the marriage is that the marriage has broken down irretrievably. ( 10 ) IT may be stated that even in England by virtue of S. 1 of the Matrimonial causes Act, 1973, the sole ground on which a petition for divorce may be presented to the Court by either party to the marriage is that the marriage has broken down irretrievably. The difficulty of determining in practice whether or not this has occurred is made (sic) by laying down in S. 1 (2) that the Court shall not hold that the marriage has broken down irretrievably unless the petitioner satisfies the court of one or more of following 5 specific facts : (a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (b) That the respondent has behaved in such a way that the petitioner cannot be expected to live with the respondent; (c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d) That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondents consent for a decree being granted; and (e) That the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presenting of the petition. ( 11 ) THE aforesaid facts must no longer be regarded as grounds for divorce unless irretrievable break down is the sole ground they must be treated as essential which would alone enable the Court to determine whether or not that ground of irretrievable break down of marriage exists. Section 1 (4) of the said Act further provides that if the Court is satisfied on the evidence of any of the facts mentioned in the aforesaid five requirements, it shall grant a decree nisi unless it is satisfied on evidence that the marriage has not broken down irretrievably. ( 12 ) SECTION 1 of the Matrimonial and Family Proceedings Act, 1954 repealed s. 3 of the Act, 1973 whereby no petition for divorce could be presented within three years of the date of the marriage without leave of the Court, is replaced by a new section which provides that no petition for divorce could be presented to the Court before the expiration of one year from the date of the marriage. ( 13 ) THE five facts which may constitute "irretrievable break down of marriage" may not be relevant for the purpose of S. 13b of our Act. The fact (d) is absolutely identical to S. 13b of our Act which contemplates that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondents consent for a decree being granted. Under S. 13b petition for dissolution of marriage by a decree of divorce may be presented by both the parties to the marriage together on the ground that they have been residing separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. This provision and S. 13b of our Act are closely parallel. It is obviously desirable that in case in which there is little chance of reconciliation, the parties to the marriage should be encouraged to resort to this ground. The period of one year separation is insisted to take the heat out of disputes between husband and wife and certainly not further to embitter the relationship between them. The requirement that the parties should have lived apart for a continuous period of at least one year immediately before presenting the petition for dissolution by mutual consent involves both physical and mental element. The physical element is needed as for the purpose of the Act the husband and the wife are to be treated as living apart unless they are living with each other in the same household. Living in the same house may also be consistent with living apart. The words "with each other" mean "living with each other as man and wife", and when in the same house they were not living with each other as man and wife, it can be said that the ground was satisfied. The English counterpart to the Indian Act also has, as back as 1973, accepted the "irretrievable breakdown of marriage" as a ground for dissolution of marriage, and as for that, all the conditions prescribed in S. 13b (1) must be satisfied. 15a. The English counterpart to the Indian Act also has, as back as 1973, accepted the "irretrievable breakdown of marriage" as a ground for dissolution of marriage, and as for that, all the conditions prescribed in S. 13b (1) must be satisfied. 15a. The Apex Court in the case of Smt. Sureshta Devi v. Om Prakash, reported in AIR 1992 SC 1904 has opportunity to deal with the provisions of S. 13b of the Hindu Marriage Act. Before making detailed reference to said precedent, it would be necessary, at this stage, to set out S. 13b and S. 23 (1) (bb) extensively :"13b. (1) Subject to the provisions of the Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, where such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-S. (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties, and after making such enquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree". "23 (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that - (bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence and. . . " ( 14 ) ON reading sub-S. (1) of S. 13b the following requirements are essential : (i) They have been living separately for a period of one year. (ii) They have not been able to live together, and (iii) They have mutually agreed that the marriage should be dissolved. . . " ( 14 ) ON reading sub-S. (1) of S. 13b the following requirements are essential : (i) They have been living separately for a period of one year. (ii) They have not been able to live together, and (iii) They have mutually agreed that the marriage should be dissolved. ( 15 ) IN the case of Sureshta Devi (supra) to put in the words of His Lordship k. Jagannath Reddy the issue before the Court was whether the party to the petition for divorce by mutual consent under S. 13b can unilaterally withdraw the consent or, whether the consent once given is irrevocable ? ( 16 ) IN the case before the Supreme Court the marriage between the spouses took place in November, 1968. They lived together for about 6 to 7 months. Thereafter, the wife did not stay with the husband except for a short period of about 28 days in 1984-85. This living together was also pursuant to an order of the Court but they did not live as husband and wife during that period. On 8-1-1985 both husband and wife, wife accompanied by her Counsel, came to the Court and they moved petition under S. 13b for dissolution by mutual consent. On 9-1-1985, the Court recorded statements of parties. On 15-1-1985, within six days from the presentation of the petition the wife filed application in the Court, inter alia, stating that her statement, dated 9-1-1985 was obtained under pressure and threat of the husband and she was not even allowed to meet her relations to consult them before filing petition for divorce nor did her parents accompany her to the Court. She, therefore, stated that she would not be a party to the petition and prayed for dismissal of petition. ( 17 ) IT was in the aforesaid fact situation that the Apex Court was called upon to decide the question of applicability of provisions of Secs. 13b (1) and (2 ). She, therefore, stated that she would not be a party to the petition and prayed for dismissal of petition. ( 17 ) IT was in the aforesaid fact situation that the Apex Court was called upon to decide the question of applicability of provisions of Secs. 13b (1) and (2 ). The district Court dismissed the petition for divorce, but on appeal, the High Court reviewed the order and granted the decree for dissolution of marriage by mutual consent on taking the view that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent, and such withdrawal, however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. ( 18 ) THE Apex Court then proceeded to notice the meaning of three requirements of sub-S. (1) of S. 13b in the following words :"the living separately for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of the petition the parties must have been living separately. The expression "living separately" connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they have not been able to live together seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. " ( 19 ) IT emphasised that "living separately" for a period of one year should be immediately preceding the presentation of the petition. Secondly, it clarified that the requirement that "the parties have not been able to live together" is indicative of the concept of broken down of marriage which was not possible to reconcile. " ( 19 ) IT emphasised that "living separately" for a period of one year should be immediately preceding the presentation of the petition. Secondly, it clarified that the requirement that "the parties have not been able to live together" is indicative of the concept of broken down of marriage which was not possible to reconcile. The third requirement was that "the parties have mutually agreed that the marriage should be dissolved". ( 20 ) THE Apex Court thereafter proceeded to analyse the requirement of subsec. (2) of S. 13b. They are :" (i) The parties to the petition are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. (ii) Such a motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments made in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. (iii) If the petition is not withdrawn, in the meantime, i. e. , before the expiry of period of 18 months from the date of its presentation, the Court shall on being satisfied after hearing and after making necessary enquiry shall pass a decree of divorce". . ( 21 ) HAVING noticed the aforesaid three ingredients of S. 13b (2) the Apex court formulated the question with which it was concerned in Para 11 of the reported judgment, and the question was :"whether it is open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition?" ( 22 ) THE Court felt that the said question was required to be examined in detail because of divergence of judicial opinion amongst High Courts. ( 23 ) THE Apex Court noticed following two divergent opinions. First Opinion (Bombay, Delhi and M. P. High Courts) ( 24 ) THE crucial time for the consent for divorce under S. 13b was the time when the petition was filed (vide Jayshree Ramesh Londhe v. Ramesh, AIR 1984 bom. ( 23 ) THE Apex Court noticed following two divergent opinions. First Opinion (Bombay, Delhi and M. P. High Courts) ( 24 ) THE crucial time for the consent for divorce under S. 13b was the time when the petition was filed (vide Jayshree Ramesh Londhe v. Ramesh, AIR 1984 bom. 302 , Smt. Chander Kanta v. Hans Kumar, AIR 1989 Delhi 73 and Meena dutta v. Anirudh Dutta, 1984 (2) DMC 388 (M. P. High Court) second Opinion (Kerala, Punjab and Haryana and Rajasthan High Courts) ( 25 ) AS per second opinion, it has been held that it is open to one of the spouses to withdraw consent given to the petition at any time before the Court passes a decree for divorce. The satisfaction of the Court after holding an enquiry about the genuineness of the consent, necessarily contemplates an opportunity for either of the spouses to withdraw the consent. (vide : K. I. Mohanan v. Jeejabai, AIR 1988 kerala 28, Harcharan Kaur v. Nachhattar Sing, AIR 1988, Punjab and Haryana 27, and Santosh Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128.) ( 26 ) HAVING so noticed the divergent judicial opinions amongst various High courts the Apex Court has found that from the analysis of S. 13b mere filing of petition with mutual consent does not authorise the Court to make decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-S. (2) of S. 13b. There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The Court also noticed that at the time of instituting petition for divorce by mutual consent the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of S. 13b is clear on this point. The Court also noticed that at the time of instituting petition for divorce by mutual consent the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of S. 13b is clear on this point. It provides that "on the motion of both the parties, if the petition is not withdrawn, in the meantime, the Court shall pass a decree of divorce. That further observation made by the Apex Court immediately thereafter in para 13 of the reported judgment are required to be quoted verbatim :"what is significant in this provision is that there should also be a mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent. " ( 27 ) HAVING so stated the law, the Apex Court has in para 15 of the reported decision observed as under :"in our view, the interpretation given to the section by the High Courts of Kerala, punjab and Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view. The decisions of the High Courts of Bombay, Delhi and M. P. (supra) cannot be said to have laid down the law correctly and they stand overruled. " ( 28 ) FROM the aforesaid conclusion recorded in para 13 read with para 15 it is submitted before this Court that the Apex Court has approved the second opinion, namely, that the High Courts of Kerala, Punjab and Harayana and Rajasthan and while laying down the correct proposition of law have expressly overruled the first opinion of Bombay, Delhi and M. P. High Courts. Art. 141 of the Constitution, binding precedents of the Apex Court and the obligation of the High Court vis-a-vis such precedents ( 29 ) ARTICLE 141 of the Constitution of India in no uncertain terms provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. As to the meaning of words "law declared" the Apex Court has in the case of Gasket Radiators v. ESIC, reported in 1985 (1) SCC 68 stated as under :"judgments of Courts are not to be construed as Acts of Parliament, nor can we read a judgment on a particular aspect of a question as a Holy Book converting all aspects of every question whether such questions and facets of such questions arose for consideration or not in that case". ( 30 ) AS to the effect of the word "binding" in the case of Assistant Collector of Central Excise v. Dunlop, reported in 1985 (1) SCC 260 the Apex Court has stated as under :"the High Courts and other Courts must accept the verdict of the Supreme Court and act upon it in view of Arts. 141 and 144. The better wisdom of the Court below must yield to the higher wisdom of the Court above". ( 31 ) FROM the aforesaid observations of the Supreme Court when it is binding and the effect of bindingness (sic) is clear and what is the law declared by the Supreme court in reported decision is also required to be determined. In this connection, attention of the Court was invited by the learned Counsel appearing for the appellanthusband to the following two decisions of the Supreme Court as to how and to what extent a precedent of the Supreme Court is to be read and binding. ( 32 ) IN the case of Prakash Amicand Shah v. State of Gujarat, reported in AIR 1986 SC 468 the Constitutional Bench of 5 Judges of the Supreme Court in the context of validity of certain provisions of Bombay Town Planning Act made pertinent observations as to how a precedent of the Apex Court is binding and to what extent. The Court also hinted at the duty of the Court while applying such precedent and made following observations in para 26 of its reported judgment :"a decision ordinarily is a decision on the case before the Court while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Hence, while applying the decision to a later case, the Court which is dealing with it should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. " ( 33 ) FURTHER in its para 31 the Apex Court made following pertinent observations :"an inappropriate purpose for which a precedent is used at a later date does not take away its binding character as a precedent. In such cases there is good reason to disregard the later decision. Such occasions in judicial history are not rare. " ( 34 ) ONCE again, in the case of Municipal Corporation of Greater Bombay v. Thukral Anjali Deokumar, reported in AIR 1989 SC 1194 in the context of Art. 141 the Court has dealt with as to how precedents of the Apex Court are to be read and applied. ( 35 ) THE learned Counsel appearing for the appellant-husband has submitted that the aforesaid decision of the Supreme Court in the case of Sureshta Devi (supra) shall have to be read and confined to the facts of the case before the Apex Court as admittedly immediately after filing of petition for divorce by mutual consent on 9-1-1985, within six days thereafter, i. e. , on 15-1-1985 the wife filed application in the Court inter alia stating that the statement, dated 9-1-1985 was obtained under pressure, threat of the husband and that she was not even allowed to see or meet her parents to consult them before filing the petition for divorce. She contended that she should not be treated as party to the petition for divorce and prayed for dismissal thereof. ( 36 ) IN the aforesaid fact situation though the ingredients of sub-secs. (1) and (2) of S. 13 (1) can be said to have been satisfied, the ingredient no. She contended that she should not be treated as party to the petition for divorce and prayed for dismissal thereof. ( 36 ) IN the aforesaid fact situation though the ingredients of sub-secs. (1) and (2) of S. 13 (1) can be said to have been satisfied, the ingredient no. (iii) as stated hereinabove read with S. 23 (1) (bb) was found to be missing. Secondly, it was pointed out that the operation of S. 13b (2) in the facts of the case before the apex Court had not arisen even before the expiration of period of six months or before any joint motion could be made thereafter, one of the parties to the proceedings has already withdrawn her consent on the ground that it was not free consent and that she has not mutually agreed with the husband to the marriage being dissolved. Thirdly, it was submitted before the Court that therefore, the question which was formulated with which the Court was concerned in the case was rather widely framed. The Court framed the question as to whether it was open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition. It was upon such a wider question that the Apex Court examined the divergence of opinion between the two groups of High Courts and approved the opinion of the second group of High Courts. Fourthly, it is submitted before this Court that if the provisions of S. 13b (2) are kept in mind and legally construed the mutuality of consent and/or consent to the petition granted by the party must necessarily continue firstly from the date of the petition till joint motion is made by the parties within six months and secondly upto the period of 18 months after the date of presentation of the petition. The use of words if the petition is not withdrawn "in the meantime", the Court shall on being satisfied after hearing the parties decide as to decree for declaring marriage to be dissolved with effect from the date of decree is required to be granted or not are referable to the period from expiry of six months to the expiry of 18 months after date of presentation of the petition or at the most it can be said to be referable to the period upto the expiry of 18 months from the date of presentation of the petition. It was, therefore, submitted before this Court that really in the light of language employed in Sec. 13b (2) the question of consent or mutuality of consent between the parties to the marriage being dissolved is to be decided by period of 18 months after the date presentation of the petition and if in the meantime the petition is not withdrawn or the consent is not withdrawn, S. 13b (2) cannot have any operation and the consent of the party at the time of decree should not assume any importance. In fact, the learned Counsel for the appellant was at pains to point out to the Court that in para 13 of the reported judgment the Apex Court has found that there is period of waiting from 6 to 8 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have second thought and change the mind not to proceed with the petition. From the aforesaid observations of the Supreme Court in para 13 of the reported judgment and more particularly in the light of language employed in S. 13b (2) it was contended that the question framed by the Apex Court in para 11 of the judgment was wider question or was one based on the language employed by the Bombay, delhi and Madhya Pradesh High Courts in the first group of opinion referred to hereinabove. Fourthly, it was submitted by the learned Counsel appearing for the appellant that even if the second opinion rendered by three High Courts which is approved by the Apex Court in its para 15 of the reported judgment the larger question posed by the Supreme Court in para 11 was never raised and answered. The question of withdrawal of consent at any time till the decree of divorce is passed, in fact, cannot arise because the Legislature has provided the period of waiting of 18 months and if the petition is not withdrawn or consent is not withdrawn during the interregnum or transitional period as prescribed by the Legislature, there is obligation cast on the Court to pass a decree of divorce as the employment of word "shall" is suggestive of the provision being mandatory after the expiry of that period. It was, therefore, submitted that the aforesaid decision of the Apex Court in the case of Sureshta Devi (supra) firstly having been rendered in the peculiar facts where the consent was withdrawn within a period of seven days from the institution of petition and was one where the provisions of sub-S. (1) of S. 13b were attracted, the decision is required to be confined to the facts of that case, and secondly, it was submitted that wider question raised by the Supreme Court was not consistent with the language of S. 13b (2) as continuation of consent till the date of decree is not even intended by the Legislature as on the expiry of interregnum or transitional period between 6 to 18 months if consent is not withdrawn in the meantime consequences must follow. ( 37 ) THE aforesaid submissions in the light of provisions of Secs. 13b (1) and (2) and more particularly in the light of language employed are very vital questions and when in the facts of the case if the petition was one where the ingredients of Sec. 13b (1) were itself not satisfied as consent was withdrawn by the wife within seven days from the date of presentation of the petition, the wider question raised in para 11 of the reported judgment, in fact, did not arise before the Apex Court. This Court is conscious of the fact that even obiter observations made by the Apex Court are binding on this Court, and therefore, I am in every respect bound by the proposition of law laid down by the Apex Court in the case of Sureshta Devi (supra), but then, it is pointed out to this Court that the second opinion expressed by three High Courts which is approved by the Supreme Court also makes a distinction between a situation where the mutual consent has continued during the interregnum or transitional period of 18 months and has not been withdrawn upto that date. The aforesaid three High Courts have not gone to the extent of propounding a broader proposition that till the date of decree the mutuality of consent must continue as that is not expected by the law making body itself. In the light of this part of submissions, and in view of the fact that the Apex Court has in very specific and clear terms in its para 17 of the reported judgment approved the interpretation given to the second opinion by the High Courts of Kerala, Punjab and Haryana and Rajasthan, this Court feels that it is its duty to refer to the aforesaid decision because the wider proposition is not laid down by the aforesaid three High Courts. Opinion of Rajasthan High Court ( 38 ) IN the case of Santosh Kumari v. Virendra Kumar, reported in AIR 1986 raj. 128 the marriage between the parties took place on 16-2-1975 and they lived together till 15-10-1979 and daughter was born out of wedlock. The husband thereafter filed petition under S. 13 of the Act for dissolution of marriage on the ground of cruelty and desertion. The wife contested the petition. The fact of marriage and birth of daughter were admitted by the wife, but the allegations of cruelty were denied. The issues were framed on pleadings of the parties and during reconciliation proceedings it was found that the husband was not willing to live with the wife. When the matter was pending for evidence of the husband, one additional issue was also added and the case was fixed for evidence. The issues were framed on pleadings of the parties and during reconciliation proceedings it was found that the husband was not willing to live with the wife. When the matter was pending for evidence of the husband, one additional issue was also added and the case was fixed for evidence. However, on that day, i. e. , on 9th november, 1984 the parties appeared before the Court and on 13th August, 1984 moved a joint application stating that the parties were desirous of getting a decree for dissolution of marriage by mutual consent and therefore, request was made to take up the matter and on that very day another petition purporting to be under s. 13b of the Act was also filed by the parties, i. e. , on 13-8-1994 wherein it was contended that the parties had been living separately since 15-10-1979 and it is not possible for them to live together despite efforts made by their friends and relatives in that behalf. They also stated that it was in the interest of both parties to obtain a decree for dissolution of marriage so that each one of them may be able to get another match and lead a happy life. Even after such application was made the trial Court made another attempt to bring about reconciliation between the parties but failed and they insisted that the application of the husband should be treated as a joint application with mutual consent for the grant of decree for divorce and subsequent petition filed on 13-8-1984 may be treated as a motion under sub-S. (2) of S. 13b of the Act for a decree for divorce by mutual consent. On such facts, the District Judge accepted their prayer and granted decree for dissolution of marriage. The wife, however, challenged the decree and filed appeal. ( 39 ) IT was in the aforesaid fact situation that a contention was raised before the Rajasthan High Court that the trial Court had no jurisdiction to pass decree for dissolution of marriage by mutual consent as there was no joint application by the parties before him till 13-8-1984 and that application dated 13-8-1984 could not be deemed to be a joint application as envisaged under sub-S. (2) of S. 13b. ( 40 ) WHILE dealing with said contention, the learned single Judge of the rajasthan High Court referred to various other decisions including one of the Punjab and Haryana High Court and Allahabad High Court. If reference to para 10 of the reported judgment of the Rajasthan High Court is made, the contention of the appellant-wife before the Court was that under S. 13b (2) a motion of both the parties has to be made not earlier than six months after the date of the petition referred to in sub-S. (1) and not later than 18 months after the same date and if the application is not made within that time, the Court cannot consider any subsequent application as a motion of both the parties for grant of divorce for mutual consent. While dealing with the aforesaid submission the learned single Judge made following pertinent observations :"at the first flash, the argument appeared to be attractive and plausible and with some substance but on a deeper consideration thereof, I do not find force in it. A logical conclusion of this argument would be that if the motion is not made by both the parties within 18 months of the petition under S. 13b (1), the Court would become functus officio and the application filed under S. 13b (1) would thus become infructuous. That does not appear to be the intent and purpose of sub-sec. (2) of S. 13b and a proper construction of this provision would be that the application may be withdrawn by any of the parties not before six months and not later than eighteen months of the date of the petition under S. 13b (1) and if it is not so withdrawn within that period, the Court may proceed to grant a decree on mutual consent if it is satisfied about the other requirements of the section, namely, that the marriage has been solemnized and that the averments in the petition are true. Looked at from another point of view, also, in my opinion, the same meaning has to be given to sub-S. (2) of S. 13b. Looked at from another point of view, also, in my opinion, the same meaning has to be given to sub-S. (2) of S. 13b. According to this (sub-section) the parties or any of them has a right to withdraw the application filed under sub-S. (1) of Sec. 13b till the expiry of the last date of the eighteenth month of the filing of the application under S. 13b (1) and till then the motion of both the parties for the grant of petition filed under S. 13b (1) cannot be made effective because that would deprive the parties from the right of withdrawing the application filed under s. 13b (1) and if that motion cannot be considered before the expiry of the aforesaid period of eighteen months, the application cannot be thrown out on the ground that the motion had not been made within 18 months of the date of the application under s. 13b (1) when that motion could not have been taken into consideration till the expiry of the aforesaid period. In these circumstances, I am clearly of the opinion that even if the motion is not made within eighteen months from 20-10-1982 the Court would not lose its jurisdiction to entertain the same and pass a decree in accordance with sub-S. (2) of S. 13b. Apart from this interpretation of S. 13 (2) it also appears that when it appears to the satisfaction of the Court that it is impossible for the parties to live together and a decree of divorce by mutual consent would be in the interest of both of them, it need not attach undue importance to the form of application or the time within which it has been made, as would be clear from the authorities already referred to above". . ( 41 ) IT is thus clear that even when period of six months was not over from the date of joint application which was made by the parties under S. 13b (1) the court held that the trial Court was right in assuming jurisdiction and in granting decree of divorce. . ( 41 ) IT is thus clear that even when period of six months was not over from the date of joint application which was made by the parties under S. 13b (1) the court held that the trial Court was right in assuming jurisdiction and in granting decree of divorce. It is also clear that the learned single Judge of the Rajasthan High court in no uncertain terms held that according to S. 13b (2) parties or any of them had right to withdraw the application till the expiry of last date of 18th month of filing of petition under S. 13b (1) and till then the motion of both the parties for grant of petition cannot be made effective. However, if such motion is not made within 18 months the language of S. 13b (2) is clear. Rajasthan High Court has, therefore, not expressed the opinion that mutual consent of the party must continue upto the date of decree or that mutuality of consent can be withheld or withdrawn at any point of time before date of decree. Most essential period is period beginning from six months after the date of presentation of joint petition under S. 13b (1) till the expiry of period of 18 months from the date of presentation of the petition and if during this interregnum or transitional period the consent is not withdrawn the decree for divorce shall have to be passed. Punjab and Harayana High Courts opinion ( 42 ) IN the case of Smt. Krishna Khetarpal v. Satish Lal, reported in AIR 1987 punjab and Haryana 191 rendered by the Division Bench of the High Court to which his Lordship M. M. Punchhi (as His Lordship then was) was a party, in fact, the judgment was also rendered by His Lordship Justice M. M. Punchhi. In the facts of the case before the Division Bench of the Punjab and Haryana High Court the question raised before the Court was whether the Matrimonial Court can dissolve a marriage by decree of divorce between two Hindus on the basis of compromise entered into between the parties during pendency of divorce petition without following the prescribed procedure of S. 13b (2 ). The husband filed petition on 26th July, 1980 under S. 13 of Hindu Marriage Act for dissolution of marriage on various grounds. The husband filed petition on 26th July, 1980 under S. 13 of Hindu Marriage Act for dissolution of marriage on various grounds. During the pendency of such petition on 29-5-1984 compromise was reached between the parties which was placed before the Court. According to terms of compromise, decree for divorce was to be granted in favour of husband. The trial Court recorded compromise and granted decree of divorce. Wife, however, challenged the decree. While answering such question the Court after making detailed reference to the provisions of Secs. 13b and 23 (1) (bb) observed that both sub-sections of S. 13b operated at different points of time. The first one operates when presenting the petition and the second one operates when deciding the petition. At both points of time, both the parties must present it and pursue it. However, while construing S. 13b (2) the Division Bench of the Court made very pertinent observations which quoted herein :"the Court at that stage except for receiving and registering the petition takes no notice of it, for six months if the parties remain dormant. After six months if the parties remain consensual they move the Court under sub-S. (2 ). They cannot do so later than 18 months after the presentation of the petition. If the petition is withdrawn in the meantime, the Court has nothing to do in the matter. It is only within that period, if the petition is pending, that the Court embarks on an enquiry to be satisfied on the following particulars : (i) was the marriage solemnized between the parties ? (ii) were the parties living separately for more than one year before the presentation of the petition ? (iii) were they not able to live together at the time of presentation of petition and continue to live apart ? (iv) was there mutual agreement of the dissolution of marriage arrived at before or at the time of presentation of the petition ? and (v) that the averments made in the petition are true and conditions under Sec. 13 of the Act are fulfilled". ( 43 ) IN para 15a His Lordship Justice M. M. Punchhi (as His Lordship then was) referred to his Lordships earlier decision when his Lordship granted divorce by making following observations :". . . . . and (v) that the averments made in the petition are true and conditions under Sec. 13 of the Act are fulfilled". ( 43 ) IN para 15a His Lordship Justice M. M. Punchhi (as His Lordship then was) referred to his Lordships earlier decision when his Lordship granted divorce by making following observations :". . . . . I can see no spirit or the violation of the spirit of the statute when marital discord has otherwise been brought to surface in Court, though in criminal proceedings, leaving out any chance of conclusion between the parties so as to play a fraud on the statute. Collusion being out of picture and the litigation between the parties having remained ripe for a period more than six months tends me to invoke inherent jurisdiction of the High Court (for it is not a District Court hedged by a time factor under S. 13b of the Act) and grant divorce to the parties under the spirit of Section 13b of the Hindu Marriage Act though not in accordance with its letter, i cannot shut my eyes to the reality of the situation that I have placed before me two human beings who have wrecked their lives in mutual acrimony, but now standing at their respective launch pads look forward to start their lives anew. I see no reason why I should refuse their prayer to grant them relief now and let them wait for six months and make it prone to many a slip between the cup and lip. And even otherwise the spirit of Section 13b of the Hindu Marriage Act in providing for six months period to lapse between the prayer and the ultimate grant of divorce is, as it seems to me, based on the good legislative sense that there may be a chance for reconciliation between the parties. I have satisfied myself that there is none whatsoever in the instant case and rather the parties want to break their matrimonial bond right now at this moment. " ( 44 ) IN para 16 His Lordship referred to one another factor which the matrimonial court shall have to keep in mind and it becomes the duty of the Court to grant relief to the parties where there was background of litigation and acrimony and divorce by mutual consent appeared to the Court to be the only solution. " ( 44 ) IN para 16 His Lordship referred to one another factor which the matrimonial court shall have to keep in mind and it becomes the duty of the Court to grant relief to the parties where there was background of litigation and acrimony and divorce by mutual consent appeared to the Court to be the only solution. The said factor is noted in para 16 of the reported judgment which is also quoted herein :"the fact of fruitful years in human life being short and the possibility of the litigating parties re-arranging their lives after the divorce by mutual consent, also seem to have been the pervasive factors when this Court granted instant relief without letting the parties to go in for another bout of litigation in the processual mill". From the aforesaid views expressed by two out of three High Courts whose opinion is approved by the Apex Court as quoted hereinabove, it cannot be said that those high Courts have taken the view that in the absence of joint motion by the two parties not earlier than six months and later than 18 months after the date of presentation of the petition, if the petition is not withdrawn, in the meantime, the court shall proceed to pass a decree of dissolution of marriage after hearing the parties and after making such enquiry as it thinks fit. Such proposition did not flow from the second opinion expressed by the Courts, impliedly it can be said that the period between 6 months to 18 months from the date of the presentation of the petition is taken to be a crucial period within which the parties to joint petition for divorce by mutual consent may brood over their decision, may in a calm and compose manner decide the consequences of their decision, may consult other relatives, elderly persons, friends and well-wishers. It is during this crucial period that decision to withdraw or revoke the consent or even to withdraw the petition is to be taken, otherwise the words "if the petition is not withdrawn in the meantime" would be rendered meaningless and otiose. It is during this crucial period that decision to withdraw or revoke the consent or even to withdraw the petition is to be taken, otherwise the words "if the petition is not withdrawn in the meantime" would be rendered meaningless and otiose. Though the right to unilateral withdrawal of consent is expressly not recognised by the Apex Court by disapproving the opinion of first group of High Courts the Apex Court has while approving the opinion of the second group of High Courts stating that the mutual consent given by the parties to a petition for dissolution of marriage must subsist or exist till the decree of divorce is passed has omitted to notice that such proposition is not reached or laid down by the opinion expressed by the second group of High Courts which is expressly approved, submits the learned Counsel for the appellant. Secondly, it was submitted that when period of 18 months was over and the petition was not withdrawn the court has to be satisfied after making such enquiries as it thinks fit about the following factors : (i) That the marriage has been solemnized. (ii) That the averments in the petition are true, meaning thereby, the ingredients of S. 13b (1) are satisfied. ( 45 ) THE use of words "court shall" in the submission of the learned Counsel suggests mandatory or obligatory nature and the provision that on the expiry of period of 18 months and a party to a joint petition for divorce by mutual consent who has freely and without any duress given her consent cannot be permitted to withdraw or revoke such consent especially under the pretext or possibility of reunion when such possibility is remotest possibility when the husband having remarried and the second lady with whom he is remarried (without expressing any opinion as to whether such marriage is legitimate or not) having given birth to a male child. ( 46 ) THE learned Counsel for the appellant has also invited the attention of this court to an article written in the Journal of Indian Law Institute being 85 (25) 511 and more particularly the observations made at page 513 :"since the application of the C. P. C. rule is debatable as stated above it is necessary to construe S. 13b itself with a view to know its true meaning which alone will justify the conclusion that the husband in such a case cannot be allowed to retract from the consent given by him initially at the time of filing the petition. The following approaches may be suggested to find the true meaning of S. 13b : first, the section was inserted in the Hindu Marriage Act, 1955 by recent amendment in 1976. It is obvious, therefore, that it denotes a change in the Act. The change came about by a change in the public opinion which took place after 1955 and in or about 1976. The legislature, which had originally abstained from allowing divorce by mutual consent in the Act in 1955 even though it had allowed it under the Special Marriage Act, 1954, came to the conclusion by 1976 that it should be allowed even under the Hindu Marriage Act. Second, S. 13 of the Hindu Marriage Act enabling the Court to grant divorce on the grounds stated therein, was based on the fault theory. One of the parties to the marriage had to be shown to be at fault by the other party before divorce could be granted. But the fault theory was found unsuitable in the modern conditions for various reasons. These reasons have been indicated in a previous article by me entitled "divorce under the Hindu Marriage Act - A Conflict of Principles". Third, it is interesting to note that the word "consent" is used only in the title of S. 13b but not in the body of it. It is the contents of section rather than its title which is to give the true meaning of the section. Fourth, the scheme of the section as a whole is more important than an individual part of it. An individual part cannot be allowed to defeat the scheme as a whole. It has, therefore, to be construed in harmony with the scheme. What is the scheme of s. 13b ? Fourth, the scheme of the section as a whole is more important than an individual part of it. An individual part cannot be allowed to defeat the scheme as a whole. It has, therefore, to be construed in harmony with the scheme. What is the scheme of s. 13b ? It is mutuality which is the essence of the section. The mutuality is constituted by the requirements of sub-S. (1), viz. (i) parties have been living separately for one year, (ii) they have not been able to live together, and (iii) they have mutually agreed that the marriage be dissolved. The mutuality lies in coming to conclusion that the parties have found that they cannot live together. This conclusion is reinforced by the experience of living separately for one year. The parties have mutually agreed to dissolve the marriage without recourse to the fault theory in Sec. 13. This mutual agreement is demonstrated by the parties together filing the petition. Why is it then that S. 13b (2) says "on the motion of both the parties"? Is it the argument for the husband that the consent given by both the parties initially must continue to subsist till the motion is made under S. 13b (2) ? It would appear that this is to foist a particular view on the meaning of S. 13b (2 ). The reason is that it is not the consent but mutuality which must exist at the time of the presentation of the petition as also the time of making the motion for grant of divorce. Can the husband urge that the mutuality has ceased ? I do not think so. Mutuality is broader than consent. It consists of all the circumstances and not of mere consent alone. These circumstances are that the parties have been living separately and that they have not been able to live together. These circumstances continue to exist. Their effect cannot be destroyed by the husband by withdrawing his consent subsequently. The withdrawal of such consent by itself does not show that the parties had mutually come to conclusion that the divorce without resort to the fault theory should not be obtained from the Court. In this sense of the words "they have mutually agreed that the marriage should be dissolved" would still hold good even though the husband refuses to join in the motion for divorce. In this sense of the words "they have mutually agreed that the marriage should be dissolved" would still hold good even though the husband refuses to join in the motion for divorce. The whole question, therefore, turns on whether the object and scheme of S. 13b should be defeasible by the husband refusing to join in the motion. Can the requirement of joining in the motion not be construed consistently with the section as a whole ? It appears that this can be done. " further observations on page 516 are as under : "the object of S. 13b is to enable the Court to grant divorce if both the parties have not been able to live together and if they have agreed not to live together. The period of six months to eighteen months is given to the parties by sub-S. (2) is the cooling off period. That is to say, the parties may re-think and change their previous opinion that they cannot live together. It is only when their previous opinion is changed - they have now come to believe that they can live together and would like to live together - that the conditions for making of the motion by both the parties would cease to exist and thereafter such a motion cannot be made. But so long as conditions exit, the motion is deemed to have been made by both the parties and this would justify the Court in granting divorce to give effect to the scheme of S. 13b and to prevent it from being defeated by the act of one of the parties which is irrelevant for the purpose of the section. " ( 47 ) IN my opinion, even if the proposition of law laid down by the Apex Court in the case of Sureshta Devi (supra) is to be confined to the fact situation obtaining before the Supreme Court case where consent was withdrawn by the wife within seven days from the date of the presentation of the petition for divorce by mutual consent, the Court raised a larger question for consideration in view of the divergent opinion of the two groups of High Courts and while answering such larger question the Court made observations which do propound the law that sub-S. (2) requires the Court to hear the parties which means that both the parties. If one of the parties says that "i have withdrawn my consent" or "i am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. The Court also observed that simply confining to the mutual consent at the stage of initial petition would negate the whole idea of mutuality and consent for divorce. Mutual consent for divorce is a sine qua non for passing decree for divorce under S. 13b, mutual consent should continue till divorce decree is passed. In fact, such requirement is said to be a positive requirement for the Court to pass decree of divorce. The consent must continue till the decree is passed and must be subsisting when the case is heard. ( 48 ) EVEN if the aforesaid observations of the Supreme Court are regarded as larger than necessary, in the fact situation obtaining before the Apex Court, they are obiter observations of the Supreme Court under Art. 141 of the Constitution of India, this Court is even bound by such obiter observations. This Court, therefore, cannot say that the decision of the Supreme Court in that case should be confined to the facts of that case alone. However, this Court would like to add that in absence of wider observations of the Apex Court in Sureshta Devi case (supra) it is of the opinion that under S. 13b (2) after expiry of period of six months from the date of the presentation of the petition under S. 13b (1) for divorce by mutual consent, if upto a period of eighteen months from such date, if the petition or consent is not withdrawn in the meantime, i. e. , interregnum or transitional period the Court shall and must pass a decree after proper enquiry, meaning thereby, inquiry as to whether ingredients of S. 13b (1) were satisfied and if answer is in the affirmative it must pass a decree for dissolution of marriage. ( 49 ) THIS Court is reminded of certain observations of English and American authors on "precedents of the Courts". ( 49 ) THIS Court is reminded of certain observations of English and American authors on "precedents of the Courts". To quote the following quotation may not be treated as an act of indiscipline or impropriety on the part of this Court as this court has always regarded itself and would always regard itself as bound by the decision of the Apex Court consistent with the command of Art. 141 of the constitution of India. One American cynical jurist has described the role of precedents in legal profession as under :"the law is the only profession which records its mistakes carefully, exactly as they occur, and yet does not identify them as mistakes. "in the aforesaid sense, precedents are the records of our (Judges) mistakes. Oliver Wendell Homes has rightly said in his book "learning and Science" that . . . . . . . . . historic continuity with the past is not a duty, it is only a necessity. Jonathan swift in his "gullivers Travels" has rightly observed as under : it is a maxim among lawyers that whatever hath been done before may be done again; and therefore, they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These under the name of precedents, they produce as authorities to justify the most iniquitous opinions, and the Judges never fail of directing accordingly. In "the Merchant of Venice" Shakespeare through Portia condemns precedent in most artistic manner : portia - "it must not be; there is no power in Venice can alter a decree established; twill be recorded for a precedent; and many an error by the same example will rush into the State" the greatest poet thus as back as 1596 found precedent to be nothing else but collection of our (Judges) errors. This Court, therefore, do not call for a precedent and do not appreciate advocacy which tries to make out a point of law simply by reference to precedents. Though precedent may be used to buttress a point of view which a Judge might hold, they cannot be read as Statutes so as not to leave any leeway for the Judge to develop law. Though precedent may be used to buttress a point of view which a Judge might hold, they cannot be read as Statutes so as not to leave any leeway for the Judge to develop law. In this connection, it would not be out of place to quote a dialogue between a Judge and a lawyer which is as under : "when a Judge challenged Rufus Choate, the famous Massachusetts Lawyer, to cite a precedent for his argument before the Court, he replied : "i will look, your honour, and endeavour, to find a precedent if you require it; though it would seem a pity that the Court should lose the distinction of being the first to establish so just a rule". ( 50 ) HAVING perceived a theory of precedent in different situation and having already expressed the opinion of this Court that it is bound by the decision or obiter observations of the Apex Court in the case of Sureshta Devi (supra) it has also stated what could have been the correct reading of S. 13b (2) if the opinion of the second group of High Courts is approved. This Court must hold that wife has right to revoke her consent. ( 51 ) THE ground stated by her to revoke the consent was absolutely non-existent, jejune and false to her knowledge as will be explained hereinafter in the discussion. ( 52 ) IT may be stated that the appellant-husband has married one Sonia on 18-8-1985 and out of said wedlock a male child named Prasad was born. It may be further stated that the respondent-wife has filed Civil Suit on 1st August, 1994 for declaration that the judgment and decree passed by the City Civil Court dated 17-10-1986 was still subsisting and that the relation of appellant-Ashok with Sonia hurra was illegal and the child born out of such relationship was illegitimate child. She also applied for injunction in such suit restraining Sonia from describing herself as wife of appellant-Ashok and also sought for permanent injunction against appellant-husband from transferring any of the properties or assets to Sonia Hurra or to child Prasad or to any third person. On 24-8-1994 appellant-husband appeared in such suit and filed his written statement. This Court is not much concerned with the contents of suit and or written statement. On 24-8-1994 appellant-husband appeared in such suit and filed his written statement. This Court is not much concerned with the contents of suit and or written statement. ( 53 ) IT is thereafter that on 15-9-1994 Appellant-Ashok filed another petition for dissolution of marriage against respondent-wife being H. M. P. No. on the ground of unchastity of respondent-wife alleging large number of pornographic relations which she is alleged to have with her father and other persons also and under s. 13 (1) (ib) alleging that the wife has for a continuous period of not less than two years immediately preceding the presentation of the petition deserted the petitioner-husband. ( 54 ). Since this Court was not aware of actual pending proceedings before the apex Court between the parties and since Miscellaneous Civil Application was tendered for presentation of additional evidence, by separate order passed by this court respondent-wife was permitted to produce the memo of H. M. P. filed by the husband and reply to such petition filed by the wife. The allegations made therein by each against the other are so vulgar and centering round the science of pornography that this Court feels that detailed reference to such facts would even pollute the present matrimonial proceeding. This Court has, therefore, refrained itself from making reference to such allegations made in the subsequent petition by the husband against wife and the allegations made by the wife against the husband in her reply. Undoubtedly, a very strong feeling and impression is created in the mind of this Court that not only no re-union or reconciliation between the spouses was possible at any stage after the institution of petition for divorce by mutual consent under S. 13b on 21-8-1984, the parties were convinced that the marriage was irretrievably broken. This Court also finds that no useful purpose would be served by prolonging and/or procrastinating the miseries of two spouses when the very purpose of happy married life was lost. This Court may point out that apart from producing copy of subsequent petition being H. M. P. filed by the husband and producing reply of the wife to such petition, no substantial arguments were advanced by the learned Counsel for respondent-wife except stating that even the appellanthusband has stated that marriage with respondent-wife is subsisting, and therefore, there was no question of granting any decree of divorce by mutual consent. In fact, the respondent-wife has taken up such a stand in the Civil suit for declaration filed by her dated 1st August, 1994 seeking declaration that the judgment and decree of the City Civil Court, dated 17-10-1986 was subsisting and that marriage of Sonia with present appellant was illegal and that the child born out of such wedlock was illegitimate. It may be noted that the appellant has married Sonia on 18-8-1985 and that the child is born thereafter and that father of the appellant-husband has died on 10-12-1992 leaving behind his immovable properties. The suit is filed by the respondent-wife on 1-8-1994 wherein she has prayed for permanent injunction restraining the husband from transferring his assets to the name of his second wife - Sonia or to the name of their child - Prasad. Even criminal proceedings are also filed by the respondent-wife against appellant-husband and Sonia under S. 494 i. P. C. on 14-11-1994. The husband also filed criminal complaint under Secs. 497 and 498 of I. P. C. against respondent-wife on 10-10-1994. Parties have now resorted to various civil and criminal proceedings against each other. ( 55 ) IT is one of those cases where this Court feels that resort must be had to the provisions of S. 13b of the Act. Can this Court resort to these provisions when respondent-wife has on a thoroughly false, non-existent and jejune ground revoked her consent after the expiry period of 18 months from the date of institution of petition ? - is a question which is required to be answered. In the case of chandrakala Menon v. Vipin Menon, reported in 1993 (2) SCC 6 the question was that of custody of minor daughter under the provisions of S. 7 of Hindu Minority and Guardianship Act, 1956 and incidentally the question of divorce was also there between the parents. It was found by the Apex Court that the father was a qualified engineer residing in India and the mother was doing her Ph. D. in USA and they were belonging to well-to-do families. Minor daughter was brought up by her maternal grandparents. The daughter was sufficiently intelligent enough having love and affection of both her parents as well as for her maternal grandparents. D. in USA and they were belonging to well-to-do families. Minor daughter was brought up by her maternal grandparents. The daughter was sufficiently intelligent enough having love and affection of both her parents as well as for her maternal grandparents. It was in this situation, that the Court held that it would be in the interest of minor child that she should be given custody to her mother in USA and her mother and maternal grandfather undertook to bring or send her to India once a year so that father can have her company. In such a situation the Court found that since the marriage was irretrievably broken down and after hearing the parties in person separately and individually the Court found that there was no scope of settlement between the parties, it also recorded that the marriage was irretrievably broken and that there was no chance of their coming together. Petition for divorce by mutual consent under Sec. 13b of the said Act was then pending since July 1992 and since the parties were living separately for a period of one year the Supreme Court granted decree for divorce by mutual consent and the marriage between the parties was declared as dissolved with immediate effect. The divorce petition which was pending in the district Court at Palakkad was thus disposed of by the Supreme Court itself. From the reference to aforesaid decision it becomes clear that when the Court finds both on facts as well as from talks of resettlement or reconciliation between the parties that there was no possibility of reunion between appellant- husband and respondentwife it can dissolve the marriage. The appellant has remarried as back as 1985 and that he has got a child out of second marriage and that there were thereafter pending proceedings in the Court of law, both civil and criminal, and when wife has in no uncertain terms stated to the Court that there was no possibility of reunion whatsoever, this Court can legitimately conclude that the marriage between the parties is irretrievably broken, that withdrawal and/or revocation of consent was a mere pretext or ruse put up by the respondent-wife to bring pressure upon the appellant-husband and his second wife-Sonia. It appears that she was actually much annoyed and felt insulted because the appellant- husband contracted second marriage within a year from the date of the institution of petition for dissolution of marriage by mutual consent on 21-8-1984. ( 56 ) ONCE again, in the case of V. Bhagat v. D. Bhagat, reported in 1994 (1) scc 337 when a petition was filed for dissolution of marriage on the ground of cruelty and serious allegations were made by the husband against the wife alleging adultery, the Supreme Court at the stage of appeal before it found that on the basis of pleadings and other admitted material without full trial when allegations and counter-allegations made by the parties against each other established that the marriage has been irretrievably broken, dissolution of marriage was the duty of the matrimonial Court. From the nature of allegations made by the husband against the wife the Court found that they were sufficient to constitute mental cruelty of such a nature that the husband situated as he was and in the context of the several relevant circumstances cannot reasonably be asked to live with respondent-wife thereafter. Even otherwise, in the facts of the case, the Court found that the respondent-wife was deliberately feigning a posture which is wholly unnatural and beyond the comprehension of a reasonable person. She has been dubbed as an incorrigible adulteress. She on the other hand alleged that the husband was genetically insane and despite such situation, she insisted that she wanted to live and stay together with her husband. ( 57 ) THE fact situation which prevails before this Court though not fully comparable to the facts can be said to be identical, the rupture in the marital tie is created much earlier and admittedly the parties have started residing separately since 1983 and after full understanding and consideration of facts they had filed petition for divorce by mutual consent in the year 1984. The husband has thereafter remarried Sonia and had a child out of such wedlock. The wife has thereafter filed civil suit for declaration about the status of second wife and child born out of such marriage and also criminal complaint. The husband has also in his turn filed petition for dissolution of marriage and also a criminal complaint. The husband has thereafter remarried Sonia and had a child out of such wedlock. The wife has thereafter filed civil suit for declaration about the status of second wife and child born out of such marriage and also criminal complaint. The husband has also in his turn filed petition for dissolution of marriage and also a criminal complaint. The fact that there is no possibility of reunion is clearly established and is in no uncertain terms admitted by the wife before the Court. The obvious conclusion is that she has resolved not only to live in agony but to make life of her husband miserable too. The Supreme court in the fact situation obtaining before it has found that this type of callous attempt left no doubt that the wife was bent upon treating the husband with mental cruelty. In the fact situation obtaining before this Court it can safely conclude that the marriage between the parties has been irretrievably broken and that there is no chance of their coming together or living together. Having regard to the facts of this case, it is a fit case where a decree for dissolution of marriage by mutual consent must be granted in favour of husband so as to dissolve their marriage with immediate effect. ( 58 ) IN the case of Chandrakala Trivedi v. Dr. S. P. Trivedi, reported in 1993 (4) scc 232 it was held that if a marriage was dead and there was no possibility of being reunited it was better to bring it to an end and the Court found that the continuance of such marriage which was dead both emotionally and practically would amount to prolonging agony and affliction of cruelty and in that case also the supreme Court exercised the power and granted the decree for dissolution of marriage. ( 59 ) IN the case of Romesh Chander v. Smt. Savitri reported in JT 1995 (10) sc 362 in a petition for divorce under S. 13 (1) (ia) the Court found that where marriage is dead both emotionally and practically, continuance of marital relations for namesake is prolonging the agony and affliction of cruelty and therefore, continuance of such marriage was not advisable. The Court thereupon exercised the power under Art. 142 of the Constitution of India and directed that the marriage between them shall stand dissolved. The Court thereupon exercised the power under Art. 142 of the Constitution of India and directed that the marriage between them shall stand dissolved. In view of the aforesaid legal position if the court finds that the marriage between the spouses is irretrievably broken, it becomes the duty of the Court to exercise power and to dissolve the marriage, continuance of which is not going to serve any purpose as the marriage is practically and emotionally dead. The appellant has even married second wife as back as 1985 and has got a male child out of such wedlock and that the parties have been litigating by instituting one after another proceeding in the Courts of law. To exploit the situation and to bargain toughly with the husband the wife changed her mind and in the year 1986 after expiry of a period of 18 months from the date of the presentation of petition under S. 13b came forward with the ruse that according to her there was possibility of reunion and that, therefore, she was withdrawing/ revoking her consent. In my opinion, such an application was a clear attempt on the part of the wife to add to the miseries of husband more particularly when he has married another woman and was having child out of second marriage. She in no uncertain terms stated before the Court that reunion was out of question from the date the husband remarried and that the marriage between them was irretrievably broken. There was no matrimonial tie, love or affection existing between the parties. It was in this fact situation that in my opinion the present case is also one where this Court must grant a decree of dissolution of marriage in favour of appellanthusband thereby dissolving the marriage with immediate effect. ( 60 ) THIS Court is extremely unhappy to note that despite all its attempts to put an end to matrimonial dispute between the appellant- husband and the respondent, it has failed. The approach which spouse to a marriage should adopt, namely, that of understanding each other and adjusting to each others need is very succinctly stated by one Gujarati Poet, namley, Dr. Mukul Choksy in the following couplet : The aforesaid Gujarati couplet could be translated as under in English language :"a story so beautiful, Happiness of both is bountiful. Tilting scale gives you pleasure, Attaining height is my treasure". Mukul Choksy in the following couplet : The aforesaid Gujarati couplet could be translated as under in English language :"a story so beautiful, Happiness of both is bountiful. Tilting scale gives you pleasure, Attaining height is my treasure". This apporach to a marriage life was unfortunately found to be missing in the present day generation and it was found to be totally missing in the case of appellant and respondent. How can there be any reconciliation or reunion ? This Courts Conclusion : . ( 61 ) (1) From what is narrated hereinabove, there is no dispute that all ingredients of S. 13b (1) were fully satisfied on the date when the petition for divorce by mutual consent was filed on 21st of August, 1984. Unfortunately, in the second suit filed by the wife as well as in the subsequent pleadings, she has made a faint and unsuccessful attempts of stating that her consent was obtained by undue influence and/or duress but, the claim is not acceptable at all and when one talks with the wife, it is difficult to believe that such an intelligent lady could ever be influenced or coerced to give consent. In fact, she has at no point of time for a period of 18 months after institution of the petition or even in her application at Exhibit 11 stated that her consent was not free consent. This Court has no hesitation in holding that the consent given by the wife for divorce by mutual consent was in every respect free consent and was not vitiated by the provisions of S. 23 (1) (bb ). This Court, therefore, holds that all ingredients of S. 13b (1) were satisfied when the petition was filed by the husband and the wife. (2) This Court is satisfied on the fact that for a period of six months thereafter the parties have continued to live separate and have not cohabited or stayed together as husband and wife. (3) It shall have to be stated that husband alone moved an application at Exhibit 5 for taking up the Hindu Marriage Petition on Board and for deciding the same and that on such application, the Hindu Marriage Petition was notified before the court. It was no doubt not a joint application. However, it shall have to be kept in mind that the husband has thereafter remarried Sonia on 18th August, 1985. It was no doubt not a joint application. However, it shall have to be kept in mind that the husband has thereafter remarried Sonia on 18th August, 1985. Perhaps, this act of the husband enraged the wife and to teach a lesson of life to the husband, under the false and jejune ground of re-settlement and/or compromise, number of adjournments were sought, which led to the expiry of period of 18 months from the date of the institution of the petition. The wife admittedly did not withdraw/revoke her consent during this period but, it must be stated that she has positively stated to the Court that the reunion was now out of question. (4) Though I am bound by the decision of the Apex Court in the case of Smt. Shreshta Devi (supra), even if observations made therein are regarded as obiter observations, it is recorded that on the date of the decree, the wife has already revoked her consent by tendering application at Exhibit 11, once again on the ground which was false and jejune to her knowledge, namely, possibility of reunion. There was not only no possibility of reunion as the husband has already remarried in the month of August, 1985 and that the male child was born to the newly wedded wife Sonia, the respondent-wife was bent upon rendering the life of the husband and his second wife miserable. In fact, it is the ego of two women clashing very badly that has surfaced to this sordid state of affairs and this Court has no hesitation in holding that there was never any possibility of reunion or of reviving the marriage. Prior thereto three trial Judges of the City Civil Court, who had tried their level best to bring about reconciliation between the parties have recorded that talks of reconciliation have miserably failed. In such a fact situation the wife filed application at Exhibit 11 stating that she changed her mind because she thought that there was possibility of reunion and that she was, therefore, revoking her consent. It was not a true or correct ground but a false pretext, ruse, or jejune or non-existent ground put forward by her to justify revocation of her consent. It was not a true or correct ground but a false pretext, ruse, or jejune or non-existent ground put forward by her to justify revocation of her consent. ( 62 ) IN absence of the binding precedent of the Apex Court in the aforesaid case of Sureshta Devi (supra) this Court would have no hesitation in holding that Sec. 13b (2) makes it obligatory upon the Court by use of the mandatory word "shall" that once the period of interregnum or transitional period starting from six months from the date of the presentation of the petition till the expiry of the period of 18 months from the date of the petition was over, if the petition is not withdrawn or consent is not revoked in the meantime, the Court shall pass a decree. It may be noted that the limited enquiry which the Court is expected to make under S. 13b (2) is to the effect that : (i) the marriage has been solemnised; (ii) that averments made in the petition, namely, (a) that the parties have separated for a period of one year or more, and (b) they have not been able to live together, and (c) that they have mutually agreed that the marriage should be dissolved are satisfied. ( 63 ) THE Court has to ascertain that the aforesaid averments made in the petition, consistent with the requirement of S. 13b (1) were true and if the Court was satisfied that they were true and that the consent either of the spouses was not vitiated under s. 23 (1) (bb), it shall pass a decree of divorce. In the opinion of this Court, therefore, withdrawal or revocation of the consent by either spouse after the expiry of the period of 18 months was discouraged by the Legislature as after period of interregnum, revocation of consent was not permissible and that it was not essential that such consent must subsist till the decree of dissolution is passed. In the opinion of this Court, therefore, withdrawal or revocation of the consent by either spouse after the expiry of the period of 18 months was discouraged by the Legislature as after period of interregnum, revocation of consent was not permissible and that it was not essential that such consent must subsist till the decree of dissolution is passed. However, this expression of opinion by this Court is not inconsistent with the binding precedence of the Apex court and, therefore, I hold that the respondent-wife had right to revoke or withdraw her consent at any time before the decree of divorce is passed but in the opinion of this Court such revocation or withdrawal must be based on some sustainable ground and the ground advanced by the respondent-wife was a mere pretext, ruse, jejune and non-existent as according to her reunion was never possible between her and the appellant-husband. There were other reasons as to why she revoked the consent which were paramount in her mind and it is unfortunate that in such fact situation the trial Court refused a decree of dissolution of marriage. ( 64 ) HOWEVER, in my opinion, in view of the decisions of the Apex Court, in the subsequent decision, namely, in the case Chandrakala Menon v. Vipin Menon (supra); in the case of V. Bhagat v. D. Bhagat (supra); in the case of Chandrakala trivedi v. Dr. S. P. Trivedi (supra) and in the case of Romesh Chander v. Smt. Savitri when the Court comes to the conclusion that the marriage is irretrievably broken and that there was no possibility of reunion or reconciliation between the parties and that ingredients of S. 23 (1) (bb) were non-existent, i. e. , there was free consent to a joint petition for divorce by mutual consent by both the parties, the court can and shall have to pass a decree for dissolution of marriage by mutual consent as the very legislative intent behind enacting such a provision would be rendered meaningless if it would render the provision to lead to position of perpetuation or procrastination of agonies and miseries of the separated spouses despite the realisation that no reconciliation was possible. The Apex Court has in the aforesaid cases granted divorce even at the stage of the Apex Court and in the fact situation obtaining before this Court, this Court has no hesitation in holding that it is one case where no reunion was possible, no reconciliation between the parties was also possible and that when the husband has already remarriaged one sonia and has a male child out of said wedlock, no useful purpose will be served by refusing decree of divorce but it would be just, legal, proper and equitable in every sense of the terms that the Court must pass a decree for dissolution of marriage between the appellant- husband and the respondent-wife. ( 65 ) IN view of the aforesaid conclusions of this Court and in view of the fact that marriage between appellant-husband and respondent-wife is irretrievably broken, where reunion, is not at all possible, the judgment and decree passed by the City civil Court in Hindu Marriage Petition No. 248 of 1984 dated 17th October, 1986 is hereby quashed and set aside and decree of dissolution of marriage solemnized between the appellant and the respondent is granted from the date of the petition in the facts and circumstances of the case. There shall be no order as to costs. .