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2002 DIGILAW 1510 (AP)

R. Srinivas Rao v. Subhadra Devi

2002-12-23

P.S.NARAYANA

body2002
P. S. NARAYANA, J. ( 1 ) HEARD Sri A. P. Venugopal, Counsel representing the 1st petitioner/ husband and Sri K. Raghavacharyulu, counsel representing the 2nd petitioner/wife. ( 2 ) THE parents of the wife are present in Court and the father of the husband also is present in Court. Both the 1st petitioner and the 2nd petitioner also are present in court and all these parties are identified by their respective Counsel. ( 3 ) THE facts in brief are that the marriage between the petitioners was solemnised on 27-7-2001 at Visakhapatnam as per the Hindu rites and customs. It is further stated that ever since the date of marriage, both the parties have been living separately due to differences and there is no chance of the parties coming together and live a happy conjugal life. In view of the same, on the advise of the elders of the community and the well-wishers, the parties have decided to separate and lead their own personal lives on the terms which are specified as hereunder: a. That the 1st petitioner withdraws all the allegations made out in the legal notice and also the main O. P and as such they are ab intio nonest. B. That likewise, the 2nd petitioner withdraws all the allegations made out in the reply notice against the petitioner No. 1 and as such they are ab initio non est. C. That the 1st petitioner has agreed to pay a sum of Rs. 1,11,000/- to the 2nd petitioner towards permanent alimony, future maintenance, and all other incidental expenses incurred by the petitioner No. 2, and the petitioner No. 2 further agrees that there would be no claims whatsoever by her against the petitioner No. 1 in the future or vice versa. D. The amount of Rs. 1,11,000/- is paid by petitioner No. 1 under D. D. No. 801562, dated 21-12-2002 for rs. 50,000/- and D. D. No. 374794, dated 20-12-2002 for Rs. 61,000/-, both drawn on Andhra Bank, Service centre, Visakhapatnam and the same shall be acknowledged by the 2nd petitioner herein. E. O. P. No. 206/2002 on the file of II additional Senior Civil Judge, Ranga reddy District shall stand disposed of in terms of the compromise. 50,000/- and D. D. No. 374794, dated 20-12-2002 for Rs. 61,000/-, both drawn on Andhra Bank, Service centre, Visakhapatnam and the same shall be acknowledged by the 2nd petitioner herein. E. O. P. No. 206/2002 on the file of II additional Senior Civil Judge, Ranga reddy District shall stand disposed of in terms of the compromise. In view of the aforesaid terms, it is prayed that a mutual consent decree of divorce dissolving the marriage dated 27-7-2001 solemnised between the petitioners may be passed in the interest of justice. ( 4 ) SRI Venugopal Rao, the learned counsel representing the 1st petitioner/ husband had submitted that there is no possibility of the spouses living together and that is the reason why the elders also had thought of settling the matter once for all and the learned Counsel also pointed out that the elders of both the spouses also are present in Court. The learned Counsel also had delivered two Demand Drafts relating to the amounts specified in paragraph-3 of the petition and the Demand drafts were received by the 2nd petitioner/ wife. ( 5 ) SRI Raghavacharyulu, the learned counsel representing the wife had pointed out to Section 13-B of the Hindu Marriage act, 1955 - Act 25 to 1955, hereinafter referred to in short as "act", and had contended that the very object of introducing the provision by virtue of Act 78 of 1976 is with a view to provide for divorce by mutual consent. The learned Counsel also submitted that in the view of the facts and circumstances of the case, the parties need not be driven to the Court where the O. P. is pending and inasmuch as the parties are willing to have a decree of divorce by mutual consent by this Court, a mutual consent decree of divorce may be granted by dissolving the marriage dated 27-7-2001. The learned Counsel also had submitted that the fact that the amounts settled had been paid by way of Demand drafts and had been received, by itself shows that there is amicable settlement of the matter between the parties. The learned counsel also had placed strong reliance on K. Omprakash v. K. Nalini, AIR 1986 ap 167 (DB), and also Madhuri Mehta v. Meeta Varma, (1997) 11 SCC 81 . The learned counsel also had placed strong reliance on K. Omprakash v. K. Nalini, AIR 1986 ap 167 (DB), and also Madhuri Mehta v. Meeta Varma, (1997) 11 SCC 81 . Further elaborating his submissions, the learned counsel pointed out that in a case of this nature, even under Section 24 (1) (b) (i) of the Code of Civil Procedure, the matter can be disposed of by this Court while deciding a Transfer Civil Miscellaneous Petition and hence this Court has got ample power to record the terms and also grant mutual consent divorce decree dissolving the marriage instead of driving the parties again to the Court wherein the O. P is pending. ( 6 ) HEARD both the Counsel and also perused the material available on record. ( 7 ) AT the outset it can be stated that as far as the amounts specified in the petition are concerned, the Demand Drafts had been delivered in the open Court by the Counsel representing the 1st petitioner/husband to the 2nd petitioner/wife. CMP No. 24839 of 2002 in Tr. CMP No. 447 of 2002 in OP no. 206/2002 was filed seeking permission to grant the prayer as per the amendments specified in the petition i. e. , amending the provision of law from Section 12 of the Act to be read as under Section 13-B of the Act to dissolve the marriage dated 27-7-2001 solemnised between the petitioners by a decree of divorce and also a further amendment to pass a mutual consent decree of divorce dissolving the marriage dated 27-7-2001 solemnized between the petitioners. ( 8 ) SINCE both the parties have no objection, CMP No. 24839 of 2002 is ordered. ( 9 ) CMP No. 24838. of 2002 is filed wherein it is prayed to pass a mutual consent decree of divorce dissolving the marriage dated 27-7-2001 solemnized between the petitioners-husband and the wife. ( 8 ) SINCE both the parties have no objection, CMP No. 24839 of 2002 is ordered. ( 9 ) CMP No. 24838. of 2002 is filed wherein it is prayed to pass a mutual consent decree of divorce dissolving the marriage dated 27-7-2001 solemnized between the petitioners-husband and the wife. Section 13-B of the Act dealing with divorce by mutual consent reads as hereunder: " (1) Subject to the provisions of this 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, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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 out earlier than six months after the date of the presentation of the petition referred to in sub-section (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 inquiry as it thinks fit, that a 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. " this provision was introduced by Act 78 of 1976 with a view to provide divorce by mutual consent and in order to attract the provisions of this Section, no doubt certain conditions are specified in Section 13-B of the Act. However, in the decision referred in K. Omprakash s case (supra), the Division bench while dealing with Section 13-B (2) of the Act had arrived at the conclusion that it should be read as directory only. However, in the decision referred in K. Omprakash s case (supra), the Division bench while dealing with Section 13-B (2) of the Act had arrived at the conclusion that it should be read as directory only. The division Bench also had observed that section 13-B (2) no doubt cautions the Court of its duty to fight the last ditch battle to save the marriage, but when the Court is fully satisfied on the basis of the proved facts that in the interests of justice of the society and the individuals, marriage tie should be put to an end immediately, section 13-B (2) does not impose any fetter on the powers of the Court to grant instant decree of divorce and at any rate, time table fixed under Section 13-B (2) does not apply to an appellate Court. ( 10 ) IT is no doubt true that in the present case, the O. P is pending and at that stage, the Transfer Civil Miscellaneous petition is moved before this Court and however the parties thought of settling the matter at this stage. In the decision referred in Madhuri Mehta s case (supra), it was held that where a joint application was presented before the Supreme Court during the course of hearing of the transfer petition, depending upon the facts and circumstances of the case, the Apex Court held that such an application can be entertained directly by the Supreme Court and such parties can be granted decree of divorce by mutual consent in exercise of power under Article 142 of the Constitution of India. ( 11 ) THE present Transfer Civil Miscellaneous petition is moved under Section 24 of the Code of Civil Procedure dealing with general power of transfer and withdrawal. Section 24 (1) (b) (i) specifies that on the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard or of its own motion without such notice, the high Court or the District Court may at any stage, withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and try or dispose of the same. The respective Counsel had placed strong reliance on the words ". . . . . . try or dispose of the same" in the said provision. The respective Counsel had placed strong reliance on the words ". . . . . . try or dispose of the same" in the said provision. It is no doubt true that while dealing with a transfer petition, the Courts may have power, but these powers referred to supra may have to be exercised very cautiously and sparingly while dealing with transfer petitions, and I do not want to express any further opinion relating to the scope, ambit and the powers to be exercised under section 24 of the Code of Civil Procedure inasmuch as for the limited purpose in the instant case, I am thoroughly satisfied that since the spouses had settled the matter amicably and there is no possibility of continuing the matrimonial tie either, there is no point in driving these parties to agitate the matter further before the Court where the O. P is pending. Keeping in view the object and also the legislative intent of introducing Section 13-B of the Act, I am of the considered opinion that this is a fit case where even at the stage of seeking transfer of proceedings, the parties can be permitted to have such amicable settlement and in the interest of justice such an order can be passed even while deciding a transfer petition under Section 24 of the code. ( 12 ) IN view of the foregoing discussion and in the peculiar facts and circumstances of the case, the marriage of the spouses- the petitioners-husband and wife, dated 27-7-2001, is hereby dissolved by a mutual consent decree between the parties. ( 13 ) THE Petition ordered.