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2021 DIGILAW 819 (GAU)

Dhruba Borthakur v. Barnali Goswami

2021-12-20

ACHINTYA MALLA BUJOR BARUA, ROBIN PHUKAN

body2021
JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. B.D. Konwar, learned senior counsel assisted by Ms. M. Zomuanpuii, learned counsel for the appellant. Also heard Ms. M. Bora, learned counsel for the respondent. 2. The petitioner-husband had instituted F.C.(Civil) 203/2013 under section 13(1)(ia) of the Hindu Marriage Act, 1955 before the Court of the learned Principal Judge, Family Court No. 1, Kamrup, Guwahati. The said proceeding resulted in the judgment dated 12.10.2018 by which the petition of the petitioner-husband for a dissolution of marriage stood dismissed. 3. Being aggrieved, Mat. App. No. 36/2019 has been instituted by the petitioner-husband. When the proceeding was conducted on 12.12.2019, it was recorded that the learned counsel for the respondent-wife Ms. M. Bora had stated that although the dispute between the parties was referred for a mediation, but no settlement could be arrived at. A further statement was made by Ms. M. Bora, learned counsel for the respondent-wife that although this is an appeal by the husband against an order for refusal of dissolution of marriage, but the respondent is agreeable to go for dissolution. 4. In the circumstance, it was submitted that what remains to be decided between the parties is for arriving at an appropriate permanent alimony that may be agreed upon. In the said order it was recorded that the respondent-wife claims for permanent alimony amounting to Rs. 50,000,00 plus one of the properties of the husband where she can continue to live with the child who is stated to be a son of six years of age. 5. Accordingly, an order was passed that on the next date, an affidavit shall be filed stating in detail regarding the properties involved. The matter remained as such, and when it was taken up on 2.12.2020, the said stand of the parties was reiterated. In the circumstance, by the order dated 2.12.2020 the learned Family Court was required to arrive at a conclusion as regards the permanent alimony that may be applicable between the parties. 6. Today when the matter is taken up, the said stand of the respondent-wife is reiterated that she is agreeable to go for dissolution of the marriage and a permanent alimony to be determined between the parties. 7. Mr. B.D. Konwar, learned senior counsel for the appellant also agrees to the proposition of the respondent-wife as regards dissolution of the marriage. 8. 7. Mr. B.D. Konwar, learned senior counsel for the appellant also agrees to the proposition of the respondent-wife as regards dissolution of the marriage. 8. In the circumstance, we have to understand that it is a common stand of the appellant-husband as well that of the respondent-wife that they would like to go for divorce by mutual consent. Divorce by mutual consent is statutorily provided under Section 13B of the Hindu Marriage Act, 1955 (‘Act of 1955’) which, inter alia, reads as extracted:— 13 B. Divorce by mutual consent. — 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. 9. A reading of the provision of 13 B(1) of the Act of 1955 provides that a dissolution for marriage by 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 and that they have not been able to live together and further that they have mutually agreed that the marriage should be dissolved. 10. In other words, an application for dissolution of marriage under Section 13B of the Act of 1955 requires an adjudication and a satisfaction to be arrived at by the court granting dissolution of the marriage that the parties have been living separately for a period of one year or more and that they have not been able to live together and further that they have mutually agreed that the marriage should be dissolved. As there is a further requirement of the court to go into certain questions and arrive at its satisfaction, we are of the view that it would be more appropriate for the parties to file a petition under Section 13B of the Act of 1955 before the District Court which in the present case would be the learned Principal Judge, Family Court No. 1, Kamrup (M) at Guwahati. The said view is further fortified from the provision of section 19 of the Act of 1955 which provides that any petition under the Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction, the marriage was solemnized or the respondent at the time of presentation of the petition resides or the parties to the marriage last resided together or the wife is residing on the date of presentation of the petition and if the wife is a petitioner in the place where the petitioner is residing at the time of presentation of the petition in a case where the respondent may be residing at a place outside the territory to which the Act extends. 11. Under the provisions of both sections 13(B) as well as 19 of the Act of 1955 it would be more appropriate for the parties by following the statutory provision to make an application for mutual divorce before the learned Principal Judge, Family Court, Kamrup (M), Guwahati. 12. Although submissions are made there are instances where the Supreme Court had ordered for dissolution of marriage, but reading of such judgments it appears that it was a jurisdiction exercised by the Supreme Court under section 142 of the Constitution of India and not the appellate jurisdiction under the Act of 1955. 13. Accordingly, it is ordered that the parties may file their application under Section 13B of the Act of 1955 before the Principal Judge, Family Court, Kamrup (M), Guwahati and any claim that the parties may have regarding the permanent alimony be made also raised in such proceeding. We are aware that by the order dated 2.12.2020, there was a requirement for the learned Family Court to decide on the permanent alimony that may be applicable to the parties to the dispute. It is stated that such proceeding had already been started. We are aware that by the order dated 2.12.2020, there was a requirement for the learned Family Court to decide on the permanent alimony that may be applicable to the parties to the dispute. It is stated that such proceeding had already been started. If it is so, the proceeding for alimony that had already been started, be now amalgamated with the petition under Section 13B of the Act of 1955 that may be presented by the parties and the issue be decided accordingly. 14. The earlier refusal of the dissolution of marriage by the judgment dated 12.10.2018 in F.C.(Civil) Case No. 203/2013 as well as the subsequent preferring of this appeal shall not be a bar on the part of the parties to make an application under section 13 B. 15. As it is a long pending matter between the parries since title suit was instituted in the year 2013, we request the learned Principal Judge, Family Court No. 1 to decide the matter at the earliest In terms of the above, the appeal stands closed.