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2018 DIGILAW 2283 (RAJ)

Kalpana Goswami W/o Shri Vipin Sharma v. Vipin Sharma S/o Shri Govind Prasad Sharma

2018-12-11

PRAKASH GUPTA

body2018
JUDGMENT : 1. The instant Civil Miscellaneous Appeal has been preferred filed against the judgment and decree dated 8.1.2016 passed by the Additional Sessions and District Judge, Gangapur City, District Sawai Madhopur (hereinafter referred to as “the trial court”) whereby the learned trial court has allowed the application filed under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act of 1955”) and passed a decree of divorce. FACTS IN BRIEF 2. The facts necessary for a fair adjudication of the instant appeal can be briefly summarized as thus: The Appellant Kalpana Goswami and the Respondent Vipin Sharma got married in 2010, 14.7.2010 being the precise date on which their marriage was solemnized. After spending some time with each other, serious disagreements and incompatibility surfaced between them, which made it difficult for them to cohabit with each other as husband and wife even though a child was born out of their wedlock. The appellant thereafter went to her parents’ house and started living with them. After all negotiations to settle their differences failed, the parties filed a petition under Section 13-B of the Act of 1955 before the Family Court, Sawai Madhopur on 17.07.2013, which was duly transferred to the Additional District Judge, Gangapur City. 3. The matter was taken up for consideration by “the trial court” on 25.05.2015. On the said date, both the parties had appeared before “the trial court” and had willingly given affidavits, with a prayer to grant a decree of divorce. On this date i.e. 25.05.2015, the Appellant had informed the court that out of the total amount of ten lakh Rupees agreed to be given by the Respondent to her as permanent alimony, she had received a sum of Rupees five lakhs. 4. “The trial court” deferred the matter till 30.5.2015. On 30.5.2015, both the parties appeared before “the trial court” and prayed that the marriage be dissolved by mutual consent. On this date, the Appellant also informed the court that she had received the balance amount of permanent alimony i.e. Rupees five lakhs from the Respondent. 5. The matter was then deferred till 10.12.2015. On the said date, the Appellant did not appear before the court though the presence of the Respondent-husband was marked. The matter was then deferred to 12.12.2015 and thereafter to 14.12.2015. 5. The matter was then deferred till 10.12.2015. On the said date, the Appellant did not appear before the court though the presence of the Respondent-husband was marked. The matter was then deferred to 12.12.2015 and thereafter to 14.12.2015. On both these dates, the Respondent-husband had appeared before the court but the Appellant-wife did not turn up. Consequently, a decree for divorce was granted by the learned trial court on 8.1.2016 in light of the application filed by the parties under Section 13-B of the Act of 1955. Aggrieved by the judgment and decree dated 8.1.2016 passed by “the trial court”, the Appellant-wife has preferred the instant Civil Miscellaneous Appeal. ARGUMENTS BY THE COUNSELS 6. The learned counsel for the Appellant-wife has contended that the judgment and decree dated 8.1.2016 is not sustainable in the eyes of the law since it was passed ex-parte and without the consent of the Appellant-Wife. The learned counsel contended that since the wife had not appeared before “the trial court” after 30.5.2015, “the trial court” erred in presuming her consent as not withdrawn. The counsel further contended that the trial court’s reliance on the judgment passed by a Division Bench of this court in the case of Suman v. Surendra Kumar, 2002 (5) WLN 718 was wholly misconceived since the law on this point has been settled by a three-judges bench of the Hon’ble Supreme Court in Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338 . The counsel finally contended that for a decree of divorce to be granted under Section 13-B of the Act of 1955, it is essential that the consent of the parties is continuous and subsists till the passing of the decree. 7. On the other hand, learned counsel for the Respondents has supported the impugned judgment and decree and placed reliance on a Division Bench judgment of this court in Surendra Kumar (Supra). I have heard the learned counsels for both the parties and perused the impugned judgment and the material available on record. 8. The only issue that is required to be adjudicated in the instant case is whether or not a decree of divorce could have been granted by the trial court under Section 13-B of the Act of 1955 despite the non-appearance of the Appellant-Wife before “the trial court” after 30.5.2015. 8. The only issue that is required to be adjudicated in the instant case is whether or not a decree of divorce could have been granted by the trial court under Section 13-B of the Act of 1955 despite the non-appearance of the Appellant-Wife before “the trial court” after 30.5.2015. In other words, this court is required to examine whether “the trial court” was right in presuming the consent of the Appellant-Wife even though she was not present before the court on three dates: 10.12.2015, 12.12.2015 and 14.12.2015. 9. The law regarding a decree of divorce under Section 13-B of the Act of 1955 on the basis of mutual consent and the need for the both the parties to appear before the trial court is not res integra. The law has been succinctly laid down by the Hon’ble Apex Court in Smruti Pahariya (Supra). 10. In Smruti Pahariya (Supra), the Special Leave Petition had been filed before the Hon’ble Supreme Court against the judgment passed by the Bombay High Court whereby the learned court had set aside the decree of divorce granted by the trial court. The parties to the litigation were married as per Hindu rites and rituals but failing to settle their difference/disagreements, a joint petition for divorce was filed under Section 13-B of the Act of 1955 on 19.5.2007. The matter was taken up for hearing 19.11.2007 but the husband remained absent on the said date. An application was filed by the wife on the same date to summon the husband. The summon could not be served and on the basis of the wife’s affidavit, the trial court directed for substituted service under Order 5, Rule 20 of the CPC. On the next date i.e. 4.12.2007, the husband was again absent and the matter was adjourned till 10.12.2007 but on 4.12.2007 itself, the trial court allowed an application filed by the wife to pre-pone the hearing and an ex-parte decree was passed. The judgment was set aside by the Bombay High Court and upheld by the Hon’ble Supreme Court. While upholding the judgment of the High Court, the Hon’ble Supreme sCourt laid down the law as follows: “49. We are of the view that it is only on the continued mutual consent of the parties that decree for divorce under Section 13-B of the said Act can be passed by the Court. While upholding the judgment of the High Court, the Hon’ble Supreme sCourt laid down the law as follows: “49. We are of the view that it is only on the continued mutual consent of the parties that decree for divorce under Section 13-B of the said Act can be passed by the Court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the Court grants the decree, the Court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the Court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its facts situation, discussed above. 50. In our view it is only the mutual consent of the parties which gives the Court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The Court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. In the facts of the case, the impugned decree was passed within about three weeks from the expiry of the mandatory period of six months without actually ascertaining the consent of the husband, the respondent herein.” 11. From a perusal of the observations made by the Supreme Court as quoted above, the following principles as enunciated emerge: A. For a decree of divorce to be granted under Section 13-B of the Act of 1955, the consent of the parties must be a continuous consent and must subsist till the date of the decree. B. Consent cannot be presumed by the court if one of the parties remain absent from the proceedings on one or more occasions. C. Consent of both the parties is a jurisdictional fact in a case arising out of Section 13-B of the Act of 1955 and the courts should be slow to infer the existence of this jurisdictional fact. B. Consent cannot be presumed by the court if one of the parties remain absent from the proceedings on one or more occasions. C. Consent of both the parties is a jurisdictional fact in a case arising out of Section 13-B of the Act of 1955 and the courts should be slow to infer the existence of this jurisdictional fact. D. The court has to infer consent on the basis of some tangible material and only after being satisfied about the existence of mutual consent can it pass a decree of divorce under this section. 12. Keeping the above principles as laid down by the Hon’ble Apex Court, this court is of the considered opinion that all the conditions for granting a decree of divorce are satisfied in the instant case. The petition was filed before The Family Court, Sawai Madhopur on 17.7.2013 and after a lapse of more than six months, on the second motion; the parties had submitted their affidavits on 25.5.2015. On this date, the Appellant-wife had also informed the court that she had received a sum of Rupees five lakhs out of the total amount of Rupees 10 lakhs settled as permanent alimony. Thereafter, both the Appellant and the Respondent again remained present before the court on 30.5.2015 and on this date, the Appellant further informed the court that she had received the balance amount of permanent alimony. Therefore, from the facts of this case, it is clear that there was continuous consent on behalf of the Appellant and since both the parties had given their consent even on the Second Motion, there was a compliance with the provisions of Section 13-B of the Act of 1955. Further, the facts of Smruti Pahariya (Supra) are distinguishable from the facts of the instant case. In Smruti Pahariya (Supra) the Respondent-Husband did not remain present before “the trial court” even on Second Motion and the date of hearing was preponed on an application filed by the wife. Since, there was non-compliance by the mandatory provisions of Section 13-B of the Act of 1955, the consent of the husband was deemed to be withdrawn. 13. Marriage is an institution of great social importance. It is also something that brings utmost happiness and stability in one’s life. Since, there was non-compliance by the mandatory provisions of Section 13-B of the Act of 1955, the consent of the husband was deemed to be withdrawn. 13. Marriage is an institution of great social importance. It is also something that brings utmost happiness and stability in one’s life. The beauty of love and marriage/relationship was succinctly described by George Eliot as: “What greater thing is there for two human souls than to feel that they are joined for life-to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting.”[Adam Bede written by George Eliot.] However, with the change in time, the institution of marriage also has gone considerable changes. Very often, marriages tend to break down for no fault of the parties but because of the lack of compatibility between two people. To force them to stay in such a wedlock would not serve any purpose but only make the relations between them more bitter. Though not as famous as Eliot, such a situation has been succinctly described in a verse written by another poet, which reads as below: “It’s just another night when we lie awake, pretending to be in love Amidst the unsettling silence of the night, with emptiness beneath and above After eons it seems, we have returned to the place where our thoughts are hand in glove For both of us are thinking whether really entwined were our fates And if parting would hurt less than staying together, feigning to be “soulmates” [Footloosenink written by P. Gupta] It is to avoid such a situation that the parliament in its wisdom enacted Section 13-B of the Act of 1955. In view of the discussion above, the instant appeal is devoid of any merit and liable to be dismissed and is accordingly dismissed. There shall be no order as to costs.