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Jharkhand High Court · body

2005 DIGILAW 767 (JHR)

DEEPA DEVI v. DHIRAJ KUMAR SINGH

2005-10-06

M.Y.EQBAL

body2005
Judgment : ( 1 ) IN this application under Section 151 (1) of the Code of Civil Procedure the petitioner has challenged the order dated 14-2-2005 passed by the District Judge, seraikella in Misc. Case No. 02 of 2005 where by he has dismissed the Misc. case filed by the petitioner for setting aside the decree passed in Matrimonial Suit No. 05 of 2001. ( 2 ) THE Opposite Party, who is husband of the petitioner, filed an application under section 13-B of the Hindu Marriage Act for dissolution of the marriage by a decree of divorce by mutual consent. The said application was registered as Matrimonial Case no. 05 of 2001. It appears that the relationship of the petitioner and the Opposite Party, who were married in 1999, became worst and they started living separately. Out of the said wedlock, a son was born in 2000. After hearing the parties, the learned District judge passed an order on 6-9-2001 for dissolution of the marriage and the decree was prepared. The petitioner, who is the wife, however filed an application under Order xxiii Rule 3 along with S. 151 CPC for setting aside the decree. The said application was registered as Misc. Case No. 02 of 2002. The petitioner challenged the said decree on the ground that the same was obtained by the Opposite Party by practicing fraud and swearing-in false affidavit. It is alleged that the petitioner was confined in the house of the Opposite Party and she was forced to go to Chaibasa in a car with his family members who threatened her to depose before the Court for passing a decree of divorce. The Opposite Party contested the said application on the ground, inter alia, that the decree was passed by mutual consent and the same cannot be assailed after the expiry of one year on frivolous ground. It is stated that the petitioner lodged a criminal case under Section 498a/420//344/325 ipc and the said criminal proceeding was quashed by this Court in Cr. Misc. No. 1282 of 2002. The case of the Opposite Party is that after decree of divorce was passed under Section 13 B of the said Act, he remarried with Priyanka Devi on 27-5-2002 and is living with his second legally married wife. ( 3 ) IN the said Misc. Misc. No. 1282 of 2002. The case of the Opposite Party is that after decree of divorce was passed under Section 13 B of the said Act, he remarried with Priyanka Devi on 27-5-2002 and is living with his second legally married wife. ( 3 ) IN the said Misc. Case No. 2 of 2002 filed by the petitioner, both the petitioner and the Opposite Party led evidence. The learned Court below after considering the facts and evidence dismissed the said application holding that no fraud was committed by the opposite Party for obtaining decree of divorce by mutual consent. ( 4 ) I have heard Mr. S. K. Ughal, learned counsel appearing for the petitioner, and Mr. Rajiv Ranjan, learned counsel appearing for the Opposite Party. After considering the facts of the case and the argument advanced by the parties, the following two questions fall for consideration before this Court:- (1) Whether the decree of divorce passed by the Court on the application under section 13-B of the Hindu Marriage Act was legal and valid? (2) What reliefs the petitioner is entitled to in the facts and circumstances of the present case? ( 5 ) FOR better appreciation, I would first like to refer some of the relevant paragraphs of the application filed under Section 13-B of the Hindu Marriage Act. A copy of the said application has been annexed as annexure-1 to the instant application. Paragraphs 4 to 10 of the application are reproduced herein below : -4. That relationship between the petitioners become worst when the petitioner no. 1 came to know about the past premarried life of the petitioner No. 2 for the first time which was suppressed prior to the marriage and since then petitioners are living separately, leaving all marital relationship. 5. That there is no chance of conciliation between the petitioners and to live together as husband and wife. 6. That in spite of best efforts good sense has not been restored between the petitioners nor there is any chance for the same. 7. That there is no chance of compromise between the petitioners to reside together in future as such they have agreed that the marriage between the petitioners be dissolved by a decree of divorce. 8. That out of said wedlock a son has been born on 27-1-2000. 9. 7. That there is no chance of compromise between the petitioners to reside together in future as such they have agreed that the marriage between the petitioners be dissolved by a decree of divorce. 8. That out of said wedlock a son has been born on 27-1-2000. 9. That the petitioner No. 1 will have no claim over said minor son namely Gopal singh at any time. Said minor will remain with the petitioner No. 2. 10. That neither the petitioner No. 1 got any claim against petitioner No. 2 nor petitioner No. 2 got any claim (which includes any amount as maintenance or over the landed property) against the petitioner No. 1. The petitioner No. 2 will never lay any claim against the petitioner No. 1. ( 6 ) FROM perusal of the aforesaid paragraphs, particularly paragraphs 8,9 and 10, it appears that a son was born who was living with the petitioner. It was agreed between the parties, namely, the petitioner and the opposite Party, that the petitioner No. 1 shall have no claim over the said minor son who will remain with petitioner No. 2 - wife. In para. 10 of the application it was mentioned that neither the petitioner No. 1 nor petitioner No. 2, namely the wife and the minor son, shall have any claim even by way of maintenance and over any property of the opposite Party. The learned Court below while passing the decree for divorce by mutual consent, although had noticed of the aforementioned clause and referred it in the said order, but failed to consider the mandatory requirement of law that such decree on the basis of compromise must be lawful. Section 13-B of the Hindu Marriage Act reads as under: -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 {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. (B) On the motion of both the parties made not earlier than six months after the date of the presentation of the petitioner referred to in sub-section (1) and not later than eighteen months after the said date, if the petitioner is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties had after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petitioner are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. ( 7 ) IT would be appropriate at this stage to refer Section 14 of the said Act which reads as under :-14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage : provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date to the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interest of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year. ( 8 ) SECTION 13-B was introduced by amending Act 68 of 1976 which provides divorce by mutual consent. Before passing a decree for divorce by mutual consent, the court must be satisfied after hearing the parties and after making such inquiry as it may deem fit that the marriage was solemnized and averments made in the petition are true. Before passing a decree for divorce the Court must satisfy itself that the consent was not procured by force or fraud or undue influence. Sub-section (2) of Section 13 very specifically provides that while passing a decree for divorce the Court shall have regard to the interest of any children of the marriage and also to find out there is any reasonable probability of reconciliation between the parties before the expiry of one year from the date of filing such application. ( 9 ) IN the instant case, as noticed above the parties jointly filed the petition for divorce and they were examined in Court before the decree for divorce by mutual consent was passed. ( 10 ) FROM the admission made by the parties in the Joint petition filed in the Court and also their evidence, the learned Court below rightly held that the marriage has been dissolved with consent of the parties. ( 11 ) THERE is no dispute that both the husband and the wife may file Joint petition for dissolution of marriage by a decree for divorce under Section 13 B of the Act on the ground that they have been living separately tor a period of one year or more and that they have not been able to live together. But section 13 B of the Act does not empower the parties to a marriage to decide the right of the minor children born out of the said wedlock in the matter of inheritance. But section 13 B of the Act does not empower the parties to a marriage to decide the right of the minor children born out of the said wedlock in the matter of inheritance. ( 12 ) BE that as it may, no purpose would be served in going into further details for the reason that after dissolution of the marriage, the Opposite Party has already remarried with one Priyanka Devi on 23-2-2002 and a son was born out of the said wedlock. However, this Court in order to meet the ends of justice called upon the opposite Party to provide financial assistance for the living of the petitioner and the minor son. In response thereof, the Opposite Party has, by filing affidavit, agreed to arrange a lump sum of Rs. 1 to 1. 5 lacs to be deposited in the Monthly Income Scheme of Post Office which will fetch a sum of Rs. 1000/- per month for the child as a permanent alimony. ( 13 ) CONSIDERING the entire facts and circumstances of the case, without interfering with the impugned order passed by the court below, I direct the Opposite Party to pay Rs. Two lacs by bank draft in the joint name of the petitioner and her minor son. The petitioner shall deposit the said amount of Rs. Two lacs in a long-term deposit with a Nationalized Bank and the said Fixed Deposit shall time-to-time be renewed till the child attains majority. Whatever amount accrue by way of quarterly interest, shall be deposited by the Bank in a separate account and the petitioner will be entitled to withdraw the said amount for maintaining the minor child. With the aforesaid directions, this revision application is disposed of. Order accordingly. --- *** --- .