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2014 DIGILAW 190 (MP)

Ritika Sisodiya v. Pankaj Sisodiya

2014-02-12

MOOL CHAND GARG, SHANTANU KEMKAR

body2014
JUDGMENT This order shall dispose of the interim application which has been by the appellant under Section 13-B of the Hindu Marriage Act (hereinafter referred to as Act) seeking divorce by mutual consent. 2. The brief facts as stated in the application are as under :- 1. That the appellant and respondent have entered in the relation of marriage on 28.06.2012 at Indore according to the Hindu rituals in presence of all the keen relative and friends. 2. That, since from the marriage the relationship between the appellant and the respondent was not normal then because of certain disputes always arose which has caused serious disturbance in both the families. Only after 17 days of the marriage from 15/07/2012 they are living separately. The elder members of the families has given suggestion and advice but the dispute were regular therefore a situation arose and the appellant and respondent decided to get decree of divorce by mutual consent as there was no chance to live together in future. 3. That, appellant and respondent are living separately since 15th July, 2012 and there is no chance to live together in future and therefore present application is being filed by the parties under Section 13-B of the Hindu Marriage Act. 3. The appellant has also submitted that even though a petition under Section 13-B of the Act was filed earlier, but the second (sic) could not have been filed within time and therefore filed an appeal before us under Section 28 of the Act. 4. Parties were present before us and have made their statement in support of the application. They have relied upon a judgment delivered on 3.5.2013 by this Court in F.A.No.211/2013 (Khushbu v. Ankit) wherein in similar circumstances, an appeal was filed under Section 13-B of the Act after the parties could not obtain divorce by mutual consent despite there was an application under Section 13-B of the Act, on the ground that they were not residing separately for one year. On an application moved in similar circumstances, this Court passed the following order: “Appellant with Shri Abhishek Tugnawat, Advocate. Respondent with Shri K.K. Kaushal, Advocate. The appellant and respondent, present in Court, are identified by their respective counsel. On an application moved in similar circumstances, this Court passed the following order: “Appellant with Shri Abhishek Tugnawat, Advocate. Respondent with Shri K.K. Kaushal, Advocate. The appellant and respondent, present in Court, are identified by their respective counsel. This appeal is directed against an order dated 29.09.2012 passed by the VIIth Additional District Judge, Indore in Civil Suit No.79/2012, by which the prayer of both the parties for decree of divorce by mutual consent was declined on the ground that during re-conciliation proceedings it was stated by the parties that they were residing separately since 16.05.2012 and on this ground the learned Court found that as they were not residing separately for a period of more than one year, the necessary requirement of Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as Act for short) was not complied with and dismissed the petition. Today at the time of hearing of the matter both the appellant and respondent are present. Along with the appellant her father Ashok Garg is also present. We have also enquired from the parties and found that the immediately after the marriage, there were certain disputes between the parties and they are residing separately since long. We have also enquired from the parties, whether there is any possibility of settlement between the parties, but they have specifically denied the same. The father of the appellant Ashok Garg, who is present in the Court was enquired into about any possibility of reconciliation between the parties, but it is stated by him that there is no possibility of re-conciliation and their marriage relation have come to an end. We have also perused the pleadings as filed under Section 13-B of the Act, in which it is stated that both the parties were married on 24.4.2011 and after the marriage there were some disputes between them and since last one year they are residing separately. In para 5 of the petition, it is stated that by mutual consent, it was agreed that they are residing separately. The same document was notarized on 30.07.2012 by the notary. Considering the pleadings and the statement made before this Court by the parties, we find that this appeal deserves to be allowed. In similar circumstances, the Division Bench of this Court in Vartika v. Ankit [2012 (4) MPLJ 341] considering the law held thus: “6. The same document was notarized on 30.07.2012 by the notary. Considering the pleadings and the statement made before this Court by the parties, we find that this appeal deserves to be allowed. In similar circumstances, the Division Bench of this Court in Vartika v. Ankit [2012 (4) MPLJ 341] considering the law held thus: “6. We find that in the petition filed under section 13-B of the Act the appellant and the respondent, apart from stating the fact that the wife is residing separately in her parental house since 19.02.2011 have also stated that both the parties are not living as husband and wife since last one year (emphasis supplied). This part of the pleading raised by the parties have been completely lost sight of by the learned court below and considering only the first part of the pleading that since 19.02.2011 the appellant is residing in her parental house declined to grant decree by holding that from the date of her living separately in the parental house one year has not been elapsed. However, as is clear from the averment in the petition when it was very categorically pleaded that both the parties are not living as husband and wife since last one year in our considered view there was no legal impediment of not completing the requisite period as provided under Section 13B (1) of the Act in allowing the petition for grant of decree of divorce by mutual consent. 7. Our view finds support by the ratio of judgment of the Supreme Court laid down in the case of Smt. Sureshta Devi v. Om Prakash (1992 SC 1904), the Supreme Court while dealing with the expression “living separately” has observed thus: The expression living separately connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. 8. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. 8. This Court in the case of Deepak (Dr.) v. Smt.Tanuja [ 2003 (2) JLJ 121 ] in paragraph 14 has observed thus: “14. From the aforesaid decisions, it is clear that the trial Court as well as the appellate Court at any stage of the proceedings can grant a decree by mutual consent if the conditions laid down in Section 13B and Section 23 of the Act of 1955 are fulfilled and can grant a decree for divorce in a case where the dispute is pending for more than a year and parties have been living separately for a period of more than one year and they have not been able to live together and have mutually agree that the marriage should be dissolved and the consent has not been obtained by force, fraud or undue influence. Under Section 13B of the Act of 1955 application can be filed and accepted by the Court and after an enquiry Court can dissolve the marriage between the parties by mutual consent. There is nothing in Section 13B of the Act of 1955 to indicate that the parties seeking divorce by mutual consent are required to prove anything in addition to that laid down under Section 13B of the Act of 1955. Therefore, this Court is fully competent to accept the application filed by the parties for divorce by mutual consent under Section 13B of the Act of 1955.” 9. Therefore, this Court is fully competent to accept the application filed by the parties for divorce by mutual consent under Section 13B of the Act of 1955.” 9. A Division Bench of this Court in the case of Smt. Rukpali Singh and another v. Aneel Kaur ( AIR 2005 MP 203 ) in similar set of facts where the Family Court had dismissed the application filed under section 13B of the Act on the bedrock that as per the statement of the appellants before the Family Judge to the effect that they were residing separately from December 2003 and the application preferred under Section 13B of the Act was presented before the Court on 3.09.2004 and therefore, the requisite condition stipulated under Section 13-B(1) of the Act was not complied with inasmuch as they were living separately for less than one year set aside the order passed by the learned Family Court Judge and granted decree of divorce. 10. Keeping in view the aforesaid pronouncement of the Supreme Court and of this Court and the clear averments of the parties in the petition stating therein: mHk;i{kksa ds e/; ,d o"kZ ls dksbZ nkEiR; laca/k LFkkfir ugha gq, gSaA and the fact that even otherwise more than the requisite period of one year provided under Section 13B of the Act was already elapsed when the judgment was delivered by the trial Court, we are of the considered view the judgment of the court below is liable to be set aside. 11. Accordingly, we set aside the judgment passed by the trial Court and grant the decree of divorce to the parties by mutual consent under Section 13-B of the Act. 12. The appeal stands allowed. Parties to bear their own costs. From the perusal of aforesaid judgment, we find that the Division Bench has also held that if there are averments in the petition in respect of living separately since last more than one year and if the aforesaid fact is verified at the time of hearing, then the parties are entitled for decree of divorce. In the present case, we find that the appellant and respondent both are living separately since last one year, before filing of the petition before the Family Court and there is no possibility of reconciliation between them and their matrimonial relation have also failed. In the present case, we find that the appellant and respondent both are living separately since last one year, before filing of the petition before the Family Court and there is no possibility of reconciliation between them and their matrimonial relation have also failed. In the aforesaid circumstances, we find it appropriate to allow this appeal and accordingly the petition filed by the parties under Section 13-B of the Act is allowed. A decree of divorce by mutual consent is granted between the parties. The decree be drawn accordingly. Considering the facts of the case, the parties shall bear their own costs. 5. The parties before us have also stated that they are living separately for more than 18 months since 15.07.2012 and there is no possibility of them living together. 6. In another judgment delivered in the case of Manish Sirohi v. Smt. Meenakshi, AIR 2007 Allahabad 211 in similar circumstances, the Division Bench of Allahabad High Court taking recourse of Section 14 of the Act granted divorce by mutual consent. 7. In these circumstances, I.A.No.1549/2014 as well as appeal filed by the appellant is allowed and the marriage between the parties is dissolved by a decree of mutual consent under Section 13-B of the Act. 8. C.C. as per rules. Appeal allowed.