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2014 DIGILAW 1362 (PNJ)

Umesh Sharma v. Suvira Sharma

2014-09-29

AJAY KUMAR MITTAL, RAJ RAHUL GARG

body2014
JUDGMENT : Ajay Kumar Mittal, J. By way of instant appeal, the appellant-husband has challenged the judgment and decree dated 12.3.2014, whereby petition under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (In short, "the Act") for dissolution of marriage by a decree of divorce on the ground of cruelty filed by the appellant was dismissed by learned Additional District Judge, Panchkula. 2. Briefly stated, the facts necessary for adjudication of the instant appeal as narrated therein may be noticed. The marriage between the parties was solemnized on 12.12.1990 at Panchkula in accordance with Hindu rites and ceremonies. Out of the said wedlock, two sons, namely, Akhil and Nikhil were born on 11.2.1992 and 4.9.1994. After the marriage, the parties lived together as husband and wife at House No. 493, Sector 12, Panchkula till October, 1999. Thereafter, due to differences, the parties could not adjust with each other and started living separately since October, 1999. Accordingly, the appellant filed a petition under Section 13 of the Act for a decree of divorce on the ground of cruelty. The Additional District Judge, Panchkula vide judgment and decree dated 12.3.2004 dismissed the said petition. Hence, the present appeal. 3. During the pendency of the appeal, the parties have amicably resolved their differences. As per the terms and conditions entered between the parties joint petition bearing C.M. No.5784-CII of 2014 was filed under Section 13-B of the Act for grant of a decree of divorce by mutual consent. 4. Both the parties made their respective statements on 27.3.2014 as first motion for dissolution of the marriage by mutual consent under Section 13-B of the Act. The case was adjourned on the said date for today i.e. 29.9.2014 for recording the statements of the parties by way of second motion as required under Section 13-B of the Act. 5. Appellant-Umesh Sharma and respondent-Ms. Suvira Sharma are present in Court today. They have been identified by their respective counsel. The second motion statements of the parties i.e. appellant-husband and respondent-wife have been recorded on solemn affirmation. Both the parties have agreed for divorce by way of mutual consent under Section 13-B of the Act. They have confirmed that a joint petition under Section 13-B has been presented by them for grant of decree of divorce by mutual consent. The second motion statements of the parties i.e. appellant-husband and respondent-wife have been recorded on solemn affirmation. Both the parties have agreed for divorce by way of mutual consent under Section 13-B of the Act. They have confirmed that a joint petition under Section 13-B has been presented by them for grant of decree of divorce by mutual consent. The parties have stated that they are agreed to get the marriage dissolved by mutual consent in terms of joint petition filed under Section 13-B of the Act. 6. Section 13-B of the Act reads thus: "13B. 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. (2) On the motion of both the parties made not earlier than six months after the date of 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 a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree." 7. A plain reading of sub-section (1) shows that the parties to the marriage wherever agree by mutual consent that the marriage should be dissolved by a decree of divorce on the ground that they have been living separately for a period of one year or more, both the parties may present a petition for divorce to the District Court. On presentation of such petition, statement by way of first motion would be recorded. On presentation of such petition, statement by way of first motion would be recorded. Under sub-section (2), second motion would be required to be made which should be after six months from the date of presentation of the petition referred in sub-section (1) and not later than eighteen months from the date of first motion where the petition has not been withdrawn. The Court, on being satisfied after hearing the parties pass a decree of divorce to be effective from the date of the decree. 8. The Apex Court in Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 (SC) 1637 , explained the scope of Section 13-B of the Act as under:- "14) The language employed in Section 13B(2) of the Act is clear. The Court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met: a. A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under subsection (1) and not later than 18 months; b. After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and c. The petition is not withdrawn by either party at any time before passing the decree; 15) In other words, if the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression divorce by mutual consent would be otiose." 9. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression divorce by mutual consent would be otiose." 9. In view of above and after perusing the statements made by the parties in Court on 27.3.2014 (first motion) today i.e. 29.9.2014 (second motion), we are satisfied that the averments made in the petition are true and requirements of Section 13-B of the Act are satisfied and the parties be granted divorce by way of mutual consent. Accordingly, joint petition (C.M. No.5784-CII of 2014) which is supported by affidavits of the appellant as well as the respondent, is allowed. Consequently, a decree of divorce under Section 13-B of the Act is passed effective from today by modifying the judgment and decreed dated 12.3.2004 passed by the trial Court. 10. It is further observed that the parties shall remain bound by the statements and terms of the petition filed under Section 13-B of the Act. However, in case any of the party resiles from the statements or terms of the petition, it shall be open to the other party to avail any remedy in accordance with law. 11. In view of above, the present appeal as well as misc. application stand disposed of. 12. This order shall also dispose of all the pending misc. applications.