Judgment :-

ALTAMAS KABIR, J.

1. Leave granted.

2. The short point for decision in this appeal is whether a decree can be passed on a petition for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955, when one of the petitioners withdraws consent to such decree prior to the passing of such decree.

3. In the instant case, the appellant husband was arried to the respondent wife on 22nd June, 1985, according to Hindu rites. On account of differences between them, they took a decision to obtain a decree of mutual divorce, which resulted in the filing of a joint petition for divorce under Section 13-B of the Hindu Marriage Act, 1955, (hereinafter referred to as `the Act) on 4th September, 2004, in the District Court at Chhindwara. The same was registered as Civil Suit No.167-A of 2004. As required under the provisions of Section 13-B of the aforesaid Act, the learned Second Additional District Judge, Chhindwara, fixed the date for consideration of the petition after six months so as to give the parties time to reconsider their decision. On 7th March, 2005, after the expiry of six months, the learned Second Additional District Judge, Chhindwara, took up the matter in the presence of both the parties who were present in the Court. While the appellant husband reiterated his earlier stand that a decree of mutual divorce should be passed on account of the fact that it was not possible for the parties to live together, on behalf of the respondent wife it was submitted that despite serious differences which had arisen between them, she did not want the marriage ties to be dissolved. On account of withdrawal of consent by the respondent wife, the learned Judge dismissed the joint petition under Section 13-B of the Act.

4. Aggrieved by the order dated 17th March, 2005, passed by the learned Second Additional District Judge, Chhindwara, the appellant filed an appeal under Section 28 of the Act in the High Court of Madhya Pradesh at Jabalpur on 4th April, 2005, and the same was registered as First Appeal no.323 of 2005. Even before the High Court, on 12th March, 2007, the respondent wife expressed her desire to live separately from the appellant, but she did not want that a decree of dissolution of marriage be passed. In that view of the matter, by his order dated 21st March, 2007, the learned Single Judge dismissed the First Appeal. While dismissing the appeal, the learned Single Judge took note of the decision of this Court in similar circumstances in the case of Ashok Hurra v. Rupa Bipin Zaveri [1997 (4) SCC 226], wherein this Court granted a decree of mutual divorce by exercising its extra-ordinary powers under Article 142 of the Constitution of India. It was indicated that the High Court did not have such powers and Section 13-B required that the consent of the spouses on the basis of which the petition under Section 13-B was presented, had to continue till a decree of divorce was passed by mutual consent. On that basis, the learned Single Judge of the High Court, while dismissing the appeal, observed that the appellant would be free to file a petition of divorce in accordance with law, which would be decided on its own merits by keeping in mind the special fact that the parties were living separately for about five years and the respondent wife was adamant about living apart from her husband.

5. It is against the said order passed by the High Court rejecting the appellants prayer for grant of mutual divorce that the present appeal has been filed.

6. Appearing on behalf of the appellant husband, Mr. Rohit Arya, learned Senior Advocate, contended that prior to the filing of the petition for mutual divorce, the parties had entered into a settlement which had been fully acted upon by the appellant and that under the said agreement valuable property rights had been transferred to the respondent wife, which she was and is still enjoying.

Mr. Arya submitted that apart from the above, the attitude of the respondent wife in openly d