Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 1299 (RAJ)

Vikas Rathie v. Judge Family Court

2006-04-23

DALIP SINGH

body2006
Judgment Dalip Singh, J.- This writ petition has been filed by the husband seeking a direction to the respondent Family Court Note that in the facts and circumstances of the present case, more particularly as recorded in the order-sheet dated 011.2005 to pass the orders accepting the application filed by the petitioner alongwith his wife under Section 13-B of the Hindu Marriage Act, 1955 granting a decree for dissolution of marriage by consent. 2. A perusal of the order-sheet dated 011.2005 reveals that wife of the petitioner resides in America and had come to attend the hearing of the case on the application filed under Section 13(B) of the Hindu Marriage Act, 1955 on the said date. On the said date, as there was no Presiding Officer in the Family Court, the file was placed before the District Judge, Kota who has recorded following order:- **11-96 izkFkhZ la 3. A perusal of the order goes to show that a petition under Section 13(B) was jointly filed for dissolution of marriage. On the date fixed by the Court after presentation of the petition the parties appeared before the Court. The wife Smt. Shilpa moved an application alongwith an affidavit that she is studying in U.S.A. and that she would not be in a position to attend the Court, if the case is adjourned. She even stated that her uncle Shri Girraj would attend the Court on her behalf and her attendance may be recorded on his appearance. The learned District Judge has recorded that both the parties who are present before the Court and had filed their applications alongwith the affidavits and have verified and accepted the contents of the same, they both admitted having filed the joint application on 03.01.2004 for passing a decree for dissolution of marriage by consent. The learned District Judge has recorded that after the marriage took place on 07.06.2000, both the husband and wife have been living separately since 06.04.2001. He has also recorded that a joint application was filed by them on 03.01.2004. He has also recorded that both of them had appeared before the Court and have expressed the desire for passing a decree in terms of Section 13(B) for dissolution of marriage and have accepted the fact of having filed the application under Section 13(B) for the dissolution of marriage by consent. 4. He has also recorded that both of them had appeared before the Court and have expressed the desire for passing a decree in terms of Section 13(B) for dissolution of marriage and have accepted the fact of having filed the application under Section 13(B) for the dissolution of marriage by consent. 4. However, the learned District Judge expressed his inability to pass the decree for dissolution as he had been authorized only to pass emergent orders in terms of the order dated 30.09.1993 in the absence of the Presiding Officer of the Family Court. 5. It is submitted by the leaned Counsel for the petitioner that since then a Presiding Officer of the Family Court has been posted at Kota. He further submitted that the learned Judge, Family Court, Kota has on 20.03.2006 when the matter came up before him has declined to pass the decree in absence of the wife in spite of the order dated 011.2005 wherein all the material facts have been recorded by the learned District Judge, Kota. He, therefore, submits that in the light of the order and the facts mentioned in the order-sheet dated 011.2005, the learned Judge, Family Court, Kota be directed to pass the necessary decree without insisting upon the presence of the wife as she has proceeded to the U.S.A. and would not be returning for a sufficiently long time. 6. I have heard learned Counsel for the petitioner and have perused the record, more particularly, the order dated 011.2005 recorded by the learned District Judge, Kota. It is clear from the record and the order dated 011.2005 that a joint application under Section 13(B) of the Act was filed before the Family Court by the petitioner husband and his wife for dissolution of marriage. The wife has appeared before the Court and only because there was no Presiding Officer in the Family Court at Kota, the file was placed before the District Judge, Kota who could not pass the decree on account of the order dated 30.09.1993 by which only emergent work in the absence of the Presiding Officer of the Family Court be decided by the District Judge. 7. 7. The provisions of Section 13(B) have been incorporated in the Act to provide an opportunity to the parties for dissolution of marriage by consent and the requirement of the parties appearing before the Family Court again after the stipulated period of having presented the application is by way of a precautionary measure that in case either of the parties has decided not to consent to the dissolution of marriage, the party may do so. In the present case, both the parties after having presented the application having appeared before the learned Court, filed their affidavits and have reiterated their decision praying for a decree for dissolution of marriage by consent. These facts have also been recorded by the learned District Judge in the order-sheet dated 011.2005. Thus, the parties have confirmed desire to seek dissolution of the marriage by consent. 8. In view of the aforesaid, in the facts and circumstances of the present case, there is no necessity for the learned Judge, Family Court, Kota to insist in the order dated 20.03.2006 for presence of both the parties before him. This would only defeat the whole purpose of enacting the provision of Section 13(B). Once the parties have appeared as in this case on 011.2005 and confirmed their intentions, which have been recorded by the learned District Judge, the learned Family Court can proceed on the basis of the order recorded on 011.2005. 9. In the peculiar facts and circumstances of this case, as mentioned above, more particularly as recorded in the order dated 011.2005 by the learned District Judge, it is hereby directed that the learned Judge, Family Court, Kota would pass necessary orders on the application under Section 13(B) of the Hindu Marriage Act, 1955 filed by the parties keeping in view the facts as recorded in the order dated 011.2005 without insisting upon the personal presence of the parties their representatives. 10. This writ petition is consequently allowed, as indicated above.