JUDGMENT - M.L. DUDHAT, J.:---This First Appeal is filed against the judgment and decree dated 19th February, 1994 in M.J. Petition No. 576 of 1990 passed by the learned Judge, 3rd Family Court, Bombay. By the aforesaid judgment and decree, the Family Court passed the decree of divorce under section 13-B of the Hindu Marriage Act, 1955. 2.In this appeal, the appellant who is the wife of the respondent got married with the respondent on 7-12-1986. Sometime in the month of October, 1987, appellant returned to her parental home for delivery and gave birth to a female child named Tejasari on 14-1-1988. Respondent-husband filed the present petition under section 13 of the Hindu Marriage Act for a decree of divorce against the present appellant on the grounds of cruelty and desertion i.e. under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act. The Family Court,. while delivering the judgment converted the said petition into a petition for divorce by mutual consent under section 13-B of the Act and granted divorce. The Family Court has also directed the respondent-husband to pay an amount of Rs. 40,000/- towards the permanent alimony to the present appellant and also directed the respondent-husband to pay Rs. 600/- per month towards maintenance of the child from the date of the order. 3.Mr. Kanade, the learned Counsel appearing on behalf of the appellant-wife, submitted that the appellant filed the said petition for divorce before the Family Court under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act i.e. on the grounds of cruelty and desertion. Admittedly, before the Family Court, at no point of time petition for divorce by mutual consent under section 13-B of the said Act was ever filed by the appellant and the respondent. Inspite of that, the Family Court surprisingly passed the decree under section 13-B of the Act and granted divorce by mutual consent. The aforesaid decision, according to the learned Counsel for the appellant, is illegal and without jurisdiction. 4.It is an admitted position that the present appellant filed petition for divorce on the grounds of cruelty and desertion under section 13(1)(i-a) and (i-b) of the Act. It is also admitted that there is no petition for divorce by mutual consent as contemplated under section 13-B of the Hindu Marriage Act. 4.It is an admitted position that the present appellant filed petition for divorce on the grounds of cruelty and desertion under section 13(1)(i-a) and (i-b) of the Act. It is also admitted that there is no petition for divorce by mutual consent as contemplated under section 13-B of the Hindu Marriage Act. If that is so, one fails to understand as to how the Family Court could have passed the decree of divorce under section 13-B of the Act when the petition was filed by the appellant-wife for divorce under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act. In para 9 of the judgment, the Family Court has observed that from the statement of the petitioner and the respondent, it is clear that they are living separately for more than one year and there is no cohabitation between the parties from the date of the said separation. Appellant has claimed only the maintenance from the respondent-husband. The Family Court further observed that the parties have voluntarily prayed for dissolution of their marriage. One fails to understand as to how the Family Court can make such observations when there is no petition whatsoever by the husband for dissolution of the marriage. On these grounds the trial Court held that parties are entitled to the decree of divorce under section 13-B of the Hindu Marriage Act. 5.The Family Court has completely lost sight of the fact that in the present case, the petition is filed by the appellant-wife only for divorce under section 13(1)(i-a) and (i-b) of the Act on the grounds of cruelty and desertion. In order to pass a decree of divorce by mutual consent, both the parties have no file a petition for divorce by mutual consent on the ground that they have been living separately for a period of one year or more and that they are unable to live together and that they have mutually agreed that their marriage should be dissolved. Further, under sub-section (2) of section 13-B of the Act, after the said petition is filed, on the motion of both the parties made six months thereafter and not later than eighteen months after the filing of the said petition, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that the marriage has been solemnized 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. Further, the provision under sub-section (2) of section 13-B is mandatory and no discretion is given to the Court to convert the petition for divorce under section 13 on the grounds of cruelty and desertion unless the said conversion is done by mutual consent of both the parties. Parties merely agreeing orally at the time of arguments that they have mutually agreed that their marriage should be dissolved, the petition filed under section 13(1) (i-a) and (i-b) cannot be treated to have been filed under section 13-B and decree for divorce by mutual consent cannot be passed in such a situation. Further, it is also a mandatory provision under section 23(1) (bb) of the Act that before passing the decree under section 13-B, the Court has to satisfy itself that consent has not been obtained by force, fraud or under undue influence. According to our opinion, since there was no petition before the Family Court under section 13-B of the Act by both the parties mutually agreeing for a divorce by mutual consent, the decree passed by the trial Court in the present case is liable to be set aside as the same has been passed without jurisdiction and, therefore, is illegal. In view of this, the judgment and decree passed by the trial Court dated 19th February, 1994 passed in divorce petition bearing No. M.J. Petition No. 576 of 1990 is set aside and the matter is remanded back to the Family Court for its fresh decision on the M.J. Petition 576 of 1990 filed on the grounds of cruelty and desertion. The trial Court has also to decide the amount of maintenance by allowing both the parties to lead fresh evidence. The trial Court has also to decide the amount of maintenance by allowing both the parties to lead fresh evidence. However, as and by way of interim measure, till the final disposal of the said petition before the Family Court, respondent-husband is directed to continue to pay the amount of Rs. 600/- per month to the appellant-wife for the maintenance of the child. In view of the fact that the petition filed by the appellant is pending for a long time, Family Court is directed to dispose of the said petition as expeditiously as possible, in any case within six months from the date of the receipt of the record from this Court to the Family Court. Office of this Court is directed to send back the record to the Family Court forthwith. Certified copy expedited. Remanded back. ***** 1997(2) Bom.C.R. 267 Before: R.G. Vaidyanatha, J. Central Bank of India.... Plaintiff. Versus Tarseema Compress Wood Manufacturing Co. others ....Defendants. 1997(2) Bom.C.R. 264 Before: M.L. Dudhat Mrs. R.P. Desai, JJ. Smt. Rajashri Rajendra Shasane .....Appellant. Versus Rajendra Babulal Shasane .....Respondent. Family Court Appeal No. 42 of 1994, decided on 27-9-1996. (A) Hindu Marriage Act, 1955, Secs. 13(1)(i-a), (i-b) 13-B---Divorce---Cruelty and desertion---Family Court's decree under section 13-B---Challenge to---On ground of illegality and lack of jurisdiction---Contention---No petition for divorce by mutual consent under section 13-B---Held, no discretion to Court to convert the petition for divorce under section 13 on the ground of cruelty and desertion unless the conversion is done by mutual consent of both the parties. (Paras 4 5) (B) Hindu Marriage Act, 1955, Secs. 13(1)(i-a), (i-b), 13-B 23(1)(bb)---Divorce---Duty of Court---Prior to passing decree under section 13-B---To ascertain that mandatory provision of section 23(1)(bb) have been complied with---In present case Court finds no compliance with mandatory provisions of section 23(1)(bb)---Held, decree passed by the trial Court is illegal and without jurisdiction and hence set aside and the matter is remanded back to the Family Court for fresh decision. (Para 5) Advocates appeared : V.M. Kanade, for appellant. Mrs. A.S. Malwankar, for respondent Per M.L. DUDHAT, J.:---This First Appeal is filed against the judgment and decree dated 19th February, 1994 in M.J. Petition No. 576 of 1990 passed by the learned Judge, 3rd Family Court, Bombay. By the aforesaid judgment and decree, the Family Court passed the decree of divorce under section 13-B of the Hindu Marriage Act, 1955. A.S. Malwankar, for respondent Per M.L. DUDHAT, J.:---This First Appeal is filed against the judgment and decree dated 19th February, 1994 in M.J. Petition No. 576 of 1990 passed by the learned Judge, 3rd Family Court, Bombay. By the aforesaid judgment and decree, the Family Court passed the decree of divorce under section 13-B of the Hindu Marriage Act, 1955. 2.In this appeal, the appellant who is the wife of the respondent got married with the respondent on 7-12-1986. Sometime in the month of October, 1987, appellant returned to her parental home for delivery and gave birth to a female child named Tejasari on 14-1-1988. Respondent-husband filed the present petition under section 13 of the Hindu Marriage Act for a decree of divorce against the present appellant on the grounds of cruelty and desertion i.e. under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act. The Family Court,. while delivering the judgment converted the said petition into a petition for divorce by mutual consent under section 13-B of the Act and granted divorce. The Family Court has also directed the respondent-husband to pay an amount of Rs. 40,000/- towards the permanent alimony to the present appellant and also directed the respondent-husband to pay Rs. 600/- per month towards maintenance of the child from the date of the order. 3.Mr. Kanade, the learned Counsel appearing on behalf of the appellant-wife, submitted that the appellant filed the said petition for divorce before the Family Court under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act i.e. on the grounds of cruelty and desertion. Admittedly, before the Family Court, at no point of time petition for divorce by mutual consent under section 13-B of the said Act was ever filed by the appellant and the respondent. Inspite of that, the Family Court surprisingly passed the decree under section 13-B of the Act and granted divorce by mutual consent. The aforesaid decision, according to the learned Counsel for the appellant, is illegal and without jurisdiction. 4.It is an admitted position that the present appellant filed petition for divorce on the grounds of cruelty and desertion under section 13(1)(i-a) and (i-b) of the Act. It is also admitted that there is no petition for divorce by mutual consent as contemplated under section 13-B of the Hindu Marriage Act. 4.It is an admitted position that the present appellant filed petition for divorce on the grounds of cruelty and desertion under section 13(1)(i-a) and (i-b) of the Act. It is also admitted that there is no petition for divorce by mutual consent as contemplated under section 13-B of the Hindu Marriage Act. If that is so, one fails to understand as to how the Family Court could have passed the decree of divorce under section 13-B of the Act when the petition was filed by the appellant-wife for divorce under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act. In para 9 of the judgment, the Family Court has observed that from the statement of the petitioner and the respondent, it is clear that they are living separately for more than one year and there is no cohabitation between the parties from the date of the said separation. Appellant has claimed only the maintenance from the respondent-husband. The Family Court further observed that the parties have voluntarily prayed for dissolution of their marriage. One fails to understand as to how the Family Court can make such observations when there is no petition whatsoever by the husband for dissolution of the marriage. On these grounds the trial Court held that parties are entitled to the decree of divorce under section 13-B of the Hindu Marriage Act. 5.The Family Court has completely lost sight of the fact that in the present case, the petition is filed by the appellant-wife only for divorce under section 13(1)(i-a) and (i-b) of the Act on the grounds of cruelty and desertion. In order to pass a decree of divorce by mutual consent, both the parties have no file a petition for divorce by mutual consent on the ground that they have been living separately for a period of one year or more and that they are unable to live together and that they have mutually agreed that their marriage should be dissolved. Further, under sub-section (2) of section 13-B of the Act, after the said petition is filed, on the motion of both the parties made six months thereafter and not later than eighteen months after the filing of the said petition, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that the marriage has been solemnized 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. Further, the provision under sub-section (2) of section 13-B is mandatory and no discretion is given to the Court to convert the petition for divorce under section 13 on the grounds of cruelty and desertion unless the said conversion is done by mutual consent of both the parties. Parties merely agreeing orally at the time of arguments that they have mutually agreed that their marriage should be dissolved, the petition filed under section 13(1) (i-a) and (i-b) cannot be treated to have been filed under section 13-B and decree for divorce by mutual consent cannot be passed in such a situation. Further, it is also a mandatory provision under section 23(1) (bb) of the Act that before passing the decree under section 13-B, the Court has to satisfy itself that consent has not been obtained by force, fraud or under undue influence. According to our opinion, since there was no petition before the Family Court under section 13-B of the Act by both the parties mutually agreeing for a divorce by mutual consent, the decree passed by the trial Court in the present case is liable to be set aside as the same has been passed without jurisdiction and, therefore, is illegal. In view of this, the judgment and decree passed by the trial Court dated 19th February, 1994 passed in divorce petition bearing No. M.J. Petition No. 576 of 1990 is set aside and the matter is remanded back to the Family Court for its fresh decision on the M.J. Petition 576 of 1990 filed on the grounds of cruelty and desertion. The trial Court has also to decide the amount of maintenance by allowing both the parties to lead fresh evidence. The trial Court has also to decide the amount of maintenance by allowing both the parties to lead fresh evidence. However, as and by way of interim measure, till the final disposal of the said petition before the Family Court, respondent-husband is directed to continue to pay the amount of Rs. 600/- per month to the appellant-wife for the maintenance of the child. In view of the fact that the petition filed by the appellant is pending for a long time, Family Court is directed to dispose of the said petition as expeditiously as possible, in any case within six months from the date of the receipt of the record from this Court to the Family Court. Office of this Court is directed to send back the record to the Family Court forthwith. Certified copy expedited. Remanded back. *****