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2010 DIGILAW 623 (UTT)

PARAMJEET KAUR v. STATE OF UTTARAKHAND

2010-08-31

NIRMAL YADAV, PRAFULLA C.PANT

body2010
Judgment [Per : Hon. Prafulla C. Pant, J. (oral)] This appeal, preferred under section 19 of the Family Courts Act, 1984, is directed against judgment and order dated 29.09.2009, passed by Judge, Family Court, Udham Singh Nagar, in Divorce Petition No. 51 of 2009, whereby said petition has been dismissed on the ground of collusion. 2. Heard learned counsel for the parties and perused the record. 3. Brief facts of the case are that appellants Paramjeet Kaur and Manjeet Singh got married on 04.02.2008, at Kankata, Tehsil Gadarpur, District Udham Singh Nagar, according to Hindu (Sikh) rites. They lived together for sometime. However, later their relations soured. They couldn’t reconcile with each other and they jointly filed a petition under Section 13-B of the Hindu Marriage Act, 1955, stating that they are living separately for more than one year, and their relations have so much soured that it has become impossible for them to live together. In support of the petition the parties filed their affidavits. The trial court in its impugned judgment has observed that it made efforts for reconciliation, but failed. However, the trial court dismissed the petition on the ground that the parties are in collusion, and as such, the petition under Section 13-B of the Hindu Marriage Act, cannot be allowed. 4. Section 13-B of the Hindu Marriage Act, 1955, provides that a petition for dissolution of marriage by a decree of divorce may be presented on the ground that the parties to matrimony are living separately for a period of more than one year, and that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. The lower court record shows that in the joint petition filed by the parties, it is stated in Para 6 of the petition that the parties to matrimony are living separately for more than a period of one year. 5. Learned counsel for the parties pleaded before this court that it is a case of exceptional hardship, and now the parties are living separately for more than two years. It is also submitted that still the parties are not ready to live together, and nor is there scope of reconciliation. Learned counsel for the parties further pleaded that the trial court has erred in law in dismissing the joint petition on the ground of collusion. It is also submitted that still the parties are not ready to live together, and nor is there scope of reconciliation. Learned counsel for the parties further pleaded that the trial court has erred in law in dismissing the joint petition on the ground of collusion. Clause (c) of Sub-Section (1) of Section 23 of the Hindu Marriage Act, 1955, provides that a court has to satisfy that a petition (not being a petition presented under Section 11) is not presented or prosecuted in collusion with the respondent. Said provision existed in the Act from 18th May 1955, when the Act came into force. At that point of time Section 13-B, which provides divorce by mutual consent, was not in the Statute. The said provision (Section 13-B) was inserted in the Act only vide Act No. 68 of 1976 w.e.f. 27.05.1976. If the petition under Section 13-B is dismissed on the ground of collusion, the object of inserting the provision vide Act No. 68 of 1976 would be defeated, as in that case no petition under Section 13-B can be allowed, for in every case the parties are required to file a joint petition with mutual consent. In our opinion, not only Section 11 which is expressly exempted from the clutches of Clause (c) of Sub-Section (1) of Section 23 of Hindu Marriage Act, 1955, but also Section 13-B, which was subsequently inserted in the Act, is also an exception to said Clause. Therefore, we are in agreement with the submission of learned counsel for the parties that the trial court has erred in law in dismissing the petition under Section 13-B of the Hindu Marriage Act, 1955, on the ground that the parties were in collusion. 6. For the reasons as discussed above, this appeal is allowed. The impugned judgment and order dated 29.09.2009, passed by Judge, Family Court, Udham Singh Nagar, in Divorce Petition No. 51 of 2009, is hereby set aside. The divorce petition is allowed. The marriage between the parties Paramjeet Kaur and Manjeet Singh is hereby dissolved. (Urgency Application No. 3479 of 2010 also stands disposed of).