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2016 DIGILAW 625 (RAJ)

Sweta v. Dinesh Khetani

2016-05-04

P.K.LOHRA

body2016
ORDER : P.K. Lohra, J. Petitioner has laid this writ petition under Articles 226 & 227 of the Constitution of India to assail the impugned order dated 09.10.2015 passed by the Family Court No. 1 Jodhpur in Civil Case No. 73/2014. By the order impugned, learned Family Court has turned down the request of the petitioner for passing a decree of dissolution of marriage by mutual consent under Section 13B of the Hindu Marriage Act, 1955 (for short 'the Act') precisely on the ground that respondent-husband has not turned up at the next date of hearing. 2. At the threshold, when the matter came up before this Court, record of the case was summed vide order dated 05.01.2016. 3. I have heard learned counsel for the petitioner, perused the annexed documents and thoroughly scanned record of the case. 4. Upon examining the petition in conjunction with the relevant record, it clearly emerges out that both the parties entered into matrimony on 16.02.2010 as per hindu rites and rituals. Paradoxically the matrimonial bliss for both the spouses was short lived and within three years it resulted in serious acrimony. Being aggrieved in such turbulent situation, the petitioner lodged FIR No. 247/2013 at Police station, Balotra against the respondent for offences under Sections 498A, 406 and 323 IPC. Launching of criminal proceedings by the petitioner prompted the respondent to apply for anticipatory bail under Section 438 Cr.P.C. and he also made endeavour for quashment of FIR by laying Criminal Misc. Petition No. 326/2014 before this Court under Section 482 Cr.P.C. Subsequently, during pendency of Cr. Misc. Petition, after due deliberations and good counselling by the well-wishers both the spouses agreed for settling the dispute perpetually. Taking cognizance of settlement between both the spouses and after recording its satisfaction about consent of both, FIR No. 247/2013 registered at Police station, Balotra was quashed by this Court vide order dated 07.02.2014. The operative portion of the order reads as under:- "Having considered the facts and circumstances and looking to the fact that the parties have now decided to settle their disputes, this Court is of the opinion that the possibility of accused persons being convicted in the case is absolutely remote. Accordingly, when once the matrimonial disputes have been settled by a mutual compromise then no useful purpose would be served in keeping the criminal proceedings pending. This Criminal Misc. Accordingly, when once the matrimonial disputes have been settled by a mutual compromise then no useful purpose would be served in keeping the criminal proceedings pending. This Criminal Misc. Petition is thus allowed and the FIR No. 247/2013 of Police Station Balotra, District Barmer for the offences punishable under Sections 498-A, 406, 323 and 341 IPC is hereby quashed on the basis of the compromise arrived at between the parties." 5. On the same day, both the parties laid application under Section 13B of the Act for seeking divorce by mutual consent before the learned Family Court. The learned Family Court, after making necessary enquiries from both the spouses recorded its satisfaction about the facts mentioned in the petition and posted the matter for second motion on 12.08.2014. On 12.08.2014, the petitioner appeared before the learned Family Court but the respondent did not turn up and, therefore, the matter was posted for 04.09.2014. On 04.09.2014 the petitioner remained absent and, therefore, the matter was deferred for 27.09.2014. On 27.09.2014 due to absence of both the parties, the application is dismissed for want of prosecution. Later on, the application was restored by the learned Family Court and the petitioner continued to pursue the petition for mutual divorce, however, the respondent did not turn up. The petitioner attended the proceedings on 27.08.2015, 26.09.2015 and 09.10.2015. It appears that respondent though consented for dissolution of marriage by mutual consent deliberately avoided attending the proceedings. Unwillingness of the respondent to attend proceedings before learned Family Court is clearly discernible from the record also. Therefore, in these compelling circumstances, the petitioner made endeavour to request the learned Family Court for drawing presumption about the consent of the respondent and passing a decree for divorce. The said prayer of the petitioner did not find favour of the learned Family Court and by the order impugned while declining the prayer of the petitioner, it has rejected the application under Section 13B of the Act. 6. The facts of the instant case are glaring inasmuch as the respondent-husband while agreeing for dissolution of marriage by mutual consent has persuaded the petitioner for quashment of FIR No. 247/2013 at Police Station, Balotra and as a consequence of compromise, FIR is quashed by order dated 07.02.2014. This sort of allurement by the respondent in the backdrop of facts and circumstances of the case cannot be taken as illusory. This sort of allurement by the respondent in the backdrop of facts and circumstances of the case cannot be taken as illusory. As such, quashing of FIR by compromise pre-supposes that respondent has consented for dissolution of marriage by mutual consent and, therefore, his non-appearance at the time of second motion hearing cannot be construed as withdrawal of his consent for divorce by mutual consent. Looking to the sequence of events, it was very much desirable from the learned Family Court to draw an inference that the consent for mutual divorce initially given by the respondent continued till the second motion hearing. The repeated abstention of the second respondent in the proceedings for divorce by mutual consent without conveying any objection to the prayer made in the application ought to have been objectively construed by the learned Family Court in the light of the facts which are relevant and germane to the matter more particularly the order passed by this Court on 07.02.2014 while deciding Cr. Misc. Petition No. 326/2014. By not taking cognizance of all these facts, learned Family Court has committed a serious jurisdictional error which is clearly apparent on the face of record and consequently impugned order has unnecessarily prolonged and perpetuated agony of the petitioner. Case in hand is a glaring example of failure to exercise jurisdiction so vested in the learned Family Court and further more, in the considered opinion of this Court, impugned order has occasioned miscarriage of justice. Thus, conclusively the impugned order is vulnerable. 7. My this view is also fortified by a Division Bench decision of this Court in Smt. Suman v. Surendra Kumar, AIR 2003 Rajasthan 155 wherein Court had the occasion to examine a case having almost identical facts. After analysing the law objectively with pragmatic approach, the Court was pleased to draw an inference about the consent of the husband while taking note of his continued wilful absence before the Family Court from the next date of hearing. The Court held,- "6. In the facts of the present case as noted above, the next date of hearing after six months was fixed in the presence of the parties and, therefore, the next date of hearing was known to both the parties. The wife appeared on the next date of hearing while the husband did not appear. The Court held,- "6. In the facts of the present case as noted above, the next date of hearing after six months was fixed in the presence of the parties and, therefore, the next date of hearing was known to both the parties. The wife appeared on the next date of hearing while the husband did not appear. The matter was adjourned on a couple of occasions, still the husband did not appear. The wife moved application for summoning the husband which the Court declined to do. In the appeal before this Court also the counsel for the respondent-husband did not take a stand that the husband had withdrawn his consent to the decree of divorce by mutual consent. The appeal is being opposed on technical grounds i.e., non compliance of Sub-section (2) of Section 13B. The argument on behalf of the respondent is that under Sub-section (2) a joint application had to be moved by both the parties and since the application had not been jointly moved by the parties, therefore, it was rightly rejected by the Family Court. We are unable to accept this stand of the husband. 7. Silence cannot be taken to amount to withdrawal of consent. By his continued silence the respondent-husband has frustrated the proceedings for more than three years. If he was withdrawing his consent for dissolution of marriage by a decree of divorce by way of mutual consent, nothing prevented him from taking that stand before the Family Court at the stage of second motion. The husband on the other hand decided to adopt a course of silence in order to further harass the wife. We are not inclined to take a too technical view of Sub-section (2) of the Section 13B of the Act and fall in the same error as the Family Court did. Merely because the second motion was not signed by both the parties it cannot be said that the consent of the husband was missing at the second stage. On account of silence of the husband, rather we would like to take a view that the consent to decree of divorce being granted has to be presumed. What is important is consent of parties. Format is not important. Substance is to be seen. 8. On account of silence of the husband, rather we would like to take a view that the consent to decree of divorce being granted has to be presumed. What is important is consent of parties. Format is not important. Substance is to be seen. 8. This is a case of total silence on the part of the husband on the question of consent at the stage of the second motion. Should we infer the negative from silence? We are of the view that if the husband wanted to withdraw his consent he should have taken a positive stand for that purpose. There was nothing which prevented him from informing the Court that he was withdrawing his consent for decree of divorce by mutual consent. When the husband has himself left the matter for inference, the inference ought to be drawn in favour of consent rather than for absence of consent. The husband had already given his consent for the decree of divorce at the time of the first motion and he alone could withdraw the consent by a positive act, otherwise the inference would be that the consent which was initially given continues. Therefore, in the facts of the present case, the conclusion is inevitable that the consent of the husband for divorce by mutual consent was available at the stage of the second motion and the Family Court ought to have granted the decree of divorce. The words "on the motion of both the parties" occurring in Sub-section (2) of Section 13B have to be read as meaning that consent of both the parties is available at the stage of second motion. What is of importance is consent and not the format of moving the second motion." 8. Therefore, viewed from any angle, in the backdrop of peculiar facts and circumstances of the instant case and law laid down by this Court in Smt. Suman (supra), the impugned order passed by the Family Court cannot be sustained. 9. Resultantly, instant petition is allowed. The impugned order dated 09.10.2015 (Annex.8) passed by the Family Court is hereby quashed and set aside and the matter is remanded back to the Family Court for passing appropriate decree/order for dissolution of marriage by mutual consent following the verdict of Division Bench of this Court in Smt. Suman (supra). 9. Resultantly, instant petition is allowed. The impugned order dated 09.10.2015 (Annex.8) passed by the Family Court is hereby quashed and set aside and the matter is remanded back to the Family Court for passing appropriate decree/order for dissolution of marriage by mutual consent following the verdict of Division Bench of this Court in Smt. Suman (supra). The petitioner may appear before the Family Court on 25.05.2016 and the Family Court is further directed to conclude the proceedings as expeditiously as possible preferably within a period of two months thereafter. Let record of the case be remitted back to the Family Court No. 1, Jodhpur forthwith.