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2002 DIGILAW 165 (MAD)

In re, K. S. Subramanian v. .

2002-03-01

P.SATHASIVAM

body2002
ORDER :--Aggrieved by the order of the Subordinate Judge, Poonamallee datede 24-9-2001 made in H.M.O.P. No. 58 of 2001 dismissing the joint petition filed for divorce by consent under S. 13 B of the Hindu Marriage Act, 1955, the petitioners have preferred the above revision under Article 227 of the Constitution of India. The petitioners have filed the said O.P. before the Subordinate Court, Poonamallee under S. 13 B for divorce by mutual consent. In the said petition, it is stated that the petitioners got married on 22-9-1960 at Dindigul as per customary rituals under Hindu Marriage Act, 1955. After the said marriage, they lived together at various places and they last resided at No.5, 2nd Cross Street, Ramappa Nagar, Perungudi, chennai 600 096 which is the house built and owned by the first petitioner. They have one son and one daughter born out of their wed lock. The son is aged 39 years and is married and is now teaching at Canada in a University and is well settled. Their daughter is aged about 31 years who is also highly qualified and is married to the citizen of U.S.A. and is also settled in U.S.A. It is further stated that the petitioner could not live with each other as serious differences have crept in between them on many personal and other issues which could not be reconciled. Therefore, the second petitioner took up a separate residence at Flat 2A Place view Apartments, 88, Santhome High Road, R.A. Puram, Chennai 600 028 and started living from that place since 15-1-2000. 2. Ever since the second petitioner took up separate residence, the petitioners have had deep discussions and deliberations and found that they are not compatible to each other and they cannot continue the marriage any more. the Petitioners have been living separately for a period of more than one year prior to the presentation of this petition. The first petitioner is a retired official from the Asian Development Bank at Manila and is a pensioner and the second petitioner is a retiree from the Tamil Nadu Government service and she is also a pensioner. Both of them do not have any liability to maintain each other and they have no claim or obligation to be performed by any one to the other petitioner. 3. Both of them do not have any liability to maintain each other and they have no claim or obligation to be performed by any one to the other petitioner. 3. In these circumstances they filed a petition under S. 13 B of the Hindu Marriage Act to dissolve their marriage mutually. 4. After taking me through the various averments made in the joint petition, their statements before the Court and the relevant provision namely S. 13 B of the Hindu Marriage Act, Mr. K. Chandru learned Sr. Counsel would contend that inasmuch as the petitioners have satisfied and complied with the mandatory provision, the Subordinate Judge ought to have granted divorce by consent as claimed by the petitioners. 5. I have already referred to the necessary averments made in the joint petition filed by both the parties. Apart from the assertion that they were living separately for more than a period of one year prior to the filing of the present petition, they also highlighted that their misunderstanding and difficult to rejoin. They also stated that they are not depending on any one and they are getting sizeable income by way of retirement benefits. Having seen the necessary averments in the petition and their statements as P.W. 1 and P.W. 2, the learned subordinate Judge by noticing that both of them chatting with each other prior to their evidence by suspecting their bonafides dismissed the said application. The resaoning in the conclusion of the learned Subordinate Judge cannot be sustained for the following reasons. 5A. In this regard it is relevant to note S. 13 B which enables the parties to seek for divorce by mutual consent. "13-B Divorce by mutual consent. The resaoning in the conclusion of the learned Subordinate Judge cannot be sustained for the following reasons. 5A. In this regard it is relevant to note S. 13 B which enables the parties to seek for divorce by mutual consent. "13-B Divorce by mutual consent. - (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, 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." It is clear from sub-sec.(1) of S. 13 B that a petition for dissolution of marriage by a decree of divorce can be presented 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. They must also allege and prove that they have mutually agreen that the marriage should be dissolved. 6. As stated earlier, the petitioners have fulfilled the conditions prescribed for divorce by mutual consent as provided in sub-sec.(1) of S. 13 B. 7. Learned Senior counsel for the petitioner has also brought to my notice the Division Bench decision of this Court reported in 1990 (1) Mad L.W. 64 K. Sankaran v. S. Revathi. In this case, the parties therein filed a joint petition under S. 13 B of the Act for dissolution of marriage by decree of divorce. The Principal Family Court, after entertaining the petition adjourned it to a date six months later and on the adjourned date, on the parties appearing made efforts to reconcile difference between the parties. Since the efforts did not succed the Family Court proceeded to examine the parties. both the parties were examined as P.W. 1 and P.W. 2. They explained the marriage and the subsequent development. Since the efforts did not succed the Family Court proceeded to examine the parties. both the parties were examined as P.W. 1 and P.W. 2. They explained the marriage and the subsequent development. After noting their evidence the Principal family Court found that the ingredients with reference to the parties not being able to live together is not satisfied even though the other ingredients contemplated under S. 13 B do stand satisfied and in this view the Principal Family court dismissed the petition for dissolution of marriage by a decree of divorce. Against the said order the parties therein filed an appeal before the Division Bench of this Court. After considering the materials placed and S. 13 B the Division Bench has come to the following conclusion. "While this being so, we are not able to appreciate the reasoning of the Principal Family Court that there is lack of substantiation of this ingredient by the parties. The Principal Family Court adversely comments upon the non-disclosure of the reason by the respondent with reference to her unwillingness to live with the appellant. Whatever may be the reasons, psychological or otherwise, it stands established that the parties, viz., the husband and the wife, have not been able to live toghter and they have been living separately for a period of more than a year and they have mutually agreed that the marriage should be dissolved. This is all S. 13-B of the Act requires and when the said ingredient stands satisfied it is not possible to throw out the joint petition. That they were living together till 6-3-1987 is of no relevance at all in this matter. We are of the view that the Principal Family Court committed an error in dismissing the joint petition for dissolution of marriage by a decree of divorce for the reasons expressed by it. The ingredients of S. 13-B of the Act having been made out and substantiated we are obliged to countenance the prayer for dissolution of marriage by a decree of divorce. Accordingly, this civil miscellaneous appeal is allowed, the judgment and decree of the Principal Family Court in M.O.P. No. 586 of 1988 are set aside and we grant a decree for divorce dissolving the marriage of the appellant and the respondent." 8. The said conclusion of the Division Bench is directly applicable to our case. Accordingly, this civil miscellaneous appeal is allowed, the judgment and decree of the Principal Family Court in M.O.P. No. 586 of 1988 are set aside and we grant a decree for divorce dissolving the marriage of the appellant and the respondent." 8. The said conclusion of the Division Bench is directly applicable to our case. I have already referred to the claim of both parties as in the joint petition and in their statement as P.W. 1 and P.W. 2. As observed by the Division Bench whatever may be the reasons or psychological or other wise, it stands established that the parties namely the husband and wife have not been able to live together and they have been living separately for a period of more than one year and they have been mutually agreed that the marriage should be dissolved. 9. Here, in our case, both of them have established and satisfied the ingredients of Sub-sec.(1) of S. 13B. When the said ingredients stands satisfied the Court below is bound to accept the petition and grant relief of divorce by mutual consent. All other temporary action or activities in the Court hall are immaterial and alien for consideration. I am satisfied that the learned Subordinate Judge has committed an error in dismissing the joint memo for dissolution of marriage for the reasons expressed by it. The incredients of S. 13 B of the Act having been made out and satisfied the Court has no other option except to accept the prayer for dissolution of marriage by a decree of divorce. Accordingly, the C.R.P. is allowed. The judgment and decree of the Subordinate Court, Poonamallee in H.M.O.P. No. 58 of 2001 is set aside and a decree for divorce dissolving the marriage of the petitioners is granted. No order as to costs.