Research › Search › Judgment

J&K High Court · body

2004 DIGILAW 41 (JK)

Balwant Singh (Ex. Capt. ) v. Jasbir Kour

2004-03-03

Y.P.NARGOTRA

body2004
This Civil First Misc.Appeal is directed against the judgment and decree dated 18.11.2000 passed by Addl. District Judge (Matrimonial Cases) Jammu whereby decree for divorce by the mutual consent has been passed and marriage in between the parties has been dissolved with immediate effect i.e. from the date of the passing of the decree. Admittedly the facts of the case are that parties are husband and wife. They were married to each other in accordance with the Hindu rites and law, and from the said wedlock a son was also born, who was a student of 11th class at the time of the filing of the petition. Both the parties having decided to dissolve their marriage with the mutual consent, made an application before the trial Court on 19.1.2000, for grant of decree for Divorce by mutual consent. In support of the application the statement of the parties were recorded. Both the parties supported the averments made in the application and remained consistant with their stand for dissolving the marriage by mutual consent. After institution of the application Trial Court directed the listing of the application on 21st of July 2000 i.e. after the statutory period of six months. On 21st of July 2000 when the petition came up for hearing only petitioner Jasbir Kour who is respondent herein appeared. The appellant herein who was respondent in the said application did not appear, so the application was adjourned to 14th of August 2000 by the learned trial Court while awaiting the appearance of the husband /respondent. On 14th of August 2000 an opportunity was sought for production of the parties by Mr. Vijay Sharma Advocate, on his request hearing of the application was adjourned to 31st of August 2000. On 31st of August 2000 statement of the petitioner Jasbir Kour respondent herein came to be recorded in which she continued to press her claim for divorce by mutual consent. The appellant however, did not appear. Respondent Jasbir Kour sought time for producing further evidence. However, no further evidence was led. Thus on the next date of hearing appellants statement was recorded. In his statement the appellant withdrew his consent for the dissolution of the marriage by mutual consent. The Learned Trial Court ignored the withdrawing of the consent of the appellant and by its judgment and decree dated 18.11.2000 dissolved the marriage by mutual consent. Thus on the next date of hearing appellants statement was recorded. In his statement the appellant withdrew his consent for the dissolution of the marriage by mutual consent. The Learned Trial Court ignored the withdrawing of the consent of the appellant and by its judgment and decree dated 18.11.2000 dissolved the marriage by mutual consent. Aggrieved by the judgment of the Learned Trial Court, the appellant who is husband of the respondent has come up in appeal. Mr. Johal, learned counsel for the appellant has argued that in the event of withdrawal of the consent by the appellant within the period of the 18 months no consent decree could be passed in view of the provisions contained under Section 15 of the Hindu Marriage Act. Mr. Pangotra, learned counsel for the respondent submits that the legal position is not so. He has argued that once the appellant had filed the consent application and had not withdrawn his consent within the period of six months, he could not have legally withdrawn his consent and therefore, learned Trial Court was justified in passing the decree of divorce. I have considered the respective contentions of the learned counsel for the parties and perused the record of the case. Section 15 of the Hindu Marriage Act reads a follows; "15. 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 Act 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 off 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 decree of divorce declaring the marriage to be dissolved with effect from the date of the decree." From the bare reading of this Section, it is manifest that when the spouses are not able to live together and mutually agree that the marriage between them should be dissolved they are entitled to file a joint petition before the competent court seeking dissolution of marriage. When such petition is filed it has to lie for a period of six months. The object for keeping the petition pending for a period of six months appears to be that parties are afforded more time for re-thinking over the matter again and decide as to whether they still want to go for dissolution of marriage. After the expiry of the six months when the petition comes up before the Court, the parties can seek further time for making up their mind, but this can be allowed by the Court only upto 18 months. Therefore, within the period of 18 months from the date of the presentation of the petition, parties to the application have to make up their mind as to whether they want to continue with their joint demand for dissolution of marriage or not and if they do not withdraw the petition and stick to their stand, then Court on being satisfied after hearing the parties and making such enquiry as it thinks fit that the marriage has been solemnized and that the averments of the petition are true it can pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree. In the present case the petition was filed on 19.01.2000, the period of 18 months there from would be around the month of June-July 2001. The respondent-appellant herein one of the parties has withdrawn his claim for dissolving the marriage by mutual consent through his statement-dated 13.9.2000. In the present case the petition was filed on 19.01.2000, the period of 18 months there from would be around the month of June-July 2001. The respondent-appellant herein one of the parties has withdrawn his claim for dissolving the marriage by mutual consent through his statement-dated 13.9.2000. The question, therefore, arising for consideration is that as to whether in such circumstances decree of divorce could be granted on the ground of mutual consent. Learned Trial Court has relied upon the judgments reported as AIR 1986 Punjab and Haryana, 201 and AIR 1984 Bombay 302, holding that application can be dismissed as withdrawn only if both the parties to the petition for mutual divorce agree to withdraw the same. It appears that judgment of the Apex Court rendered in Smt.Sureshta Devi v. Om Prakash, AIR 1992 SC 1904 was not brought to the notice of the Trial Court. The Supreme Court has observed that: "From the analysis of the Section, it will be apparent that the filing the petition with mutual consent does not authorizes the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum is 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-sec. (2).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. It cannot be assumed that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. At the time of the petition 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-sec. (2) of S. 13-B is clear on this point. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. They know that they have to take a further step to snap marital ties. Sub-sec. (2) of S. 13-B is clear on this point. What is significant in this provision is that there should also be 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." Learned Trial Court, therefore, was not right in ignoring the fact of withdrawal of the consent by the appellant from the claim of divorce by mutual consent. The mutual consent to the divorce is a sine qua non for passing a decree for divorce, therefore, the order of the trial court cannot be sustained in law, where by decree for divorce for the mutual consent has been granted, despite the fact that one of the parties had withdrawn his consent within the statutory period. Judgment and decree passed by the trial Court as such, merits to set aside. Accordingly the same is set side and the parties are relegated to the position where they were before the passing of the decree. There shall be no order as to costs.