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KARNATAKA HIGH COURT
N. Kumar and H.S. Kempanna, JJ.
Mrs. Neena Bhatnagar - Appellant
Versus
Mr. Bhaskar Mani - Respondent
Miscellaneous First Appeal No. 6862 of 2009 (FC)
Decided On : 9.12.2011
HINDU MARRIAGE ACT, 1955 - Section 13-B: [N. Kumar & H.S. Kempanna, JJ] Divorce by mutual consent - Requirements - Averments and procedure to be followed - Held, The parties should aver the facts i.e., (a) They are married before or after the commencement the Marriage Laws (Amendment) Act, 1976, - (b) They have been living separately for a period of one year or more, (c) They have not been able to live together, and (d) They have mutually agreed that the marriage should be dissolved. In the absence of these averments in the petition, the Court gets no jurisdiction to pass a decree for divorce.
After the petition of the petition sub-Section (2) of Section 13-B provides the time limit for the Court to pass a decree for dissolution of marriage. The Court gets jurisdiction to pass a decree for divorce only after the expiry of six months from the date of presentation of the petition. After the expiry of six months and before the expiry of eighteen months, the Court has to pass a decree for dissolution of marriage. It is open to either of the parties or both the parties to withdraw the petition in the meantime. If the petition is not withdrawn, the passing of a decree for divorce is not automatic. The Court shall hear the parties and after making such enquiry as it thinks fit regarding the averments in the petition and only after being satisfied that these averments are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
The enquiry referred to under sub-Section (2) of Section 13-B is regarding truthfulness of the averments made in the joint petition, if the petition is not withdrawn, the question of holding any enquiry regarding truthfulness of the averments in the petition would not arise. The period of interregnum of six to eighteen months was intended to give time and opportunity to the parties to have a second though and change the mind. If it is not so done within the order limit of eighteen months, the petition duly filed under Section 13-B(1) and still pending shall be adjudicated by the Court as provided under Section 13-B(2) of the Act. The said adjudication should relate only to the truthfulness of the averments in the petition. It is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the Act can be passed by the Court.
The consent should be there on the date the Court passes the decree. Even if the consent continues till the date of the passing of the decree for dissolution of marriage, the Court is under statutory obligation to hold an enquiry to find out whether the grounds mentioned under Section 13-B(1) of the Act exists. It is only on the Court being satisfied about the existence of the facts mentioned under Section 13-B(1) of the Act and the consent given by the parties at the time of presenting the petition continues on the date of the enquiry, the Court can pass a decree for divorce by mutual consent.
. HINDU MARRIAGE ACT, 1955 - Section 13-B: [N. Kumar & H.S. Kempanna, JJ] Divorce by mutual consent - Petition dismissed by Family Court on the ground that one of the parties withdrew the consent - Appeal against - Held, 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 of the Act. Order of Family Court upheld.
HINDU MARRIAGE ACT, 1955 - Section 13-B: [N. Kumar & H.S. Kempanna, JJ] Divorce by mutual consent - Averments to be made - (1) They are married before or after the commencement of the Marriage Laws (Amendment) Act, 1976; (2)They have been living separately for a period o one year or more; (3) They have not been able to live together, and (4) They have mutually agreed that the marriage should be dissolved. In the absence of these averments in the petition, Court gets no jurisdiction to pass a decree for divorce.
N. Kumar, J : This appeal is filed by the wife challenging the order passed by the Family Court, Bangalore, closing the petition flied under Section 13-B of the Hindu Marriage Act, 1955 (for short, 'the Act’), on the ground that once one of the party refused to give consent, it cannot proceed with the said petition.
2. The respondent and the appellant are husband and wife, who are married on 23.2.1992 according to the Hindu rites and customs at Jaipur. They lived together till June 2007. Subsequently, they began to live apart in view of serious and irreconcilable differences between them. When all attempts to reconciliation failed and when they had no issues from the marriage, they presented a petition under Section 13-B of the Act on 17.10.2008 through a common Counsel for dissolution of their marriage. The case was numbered as M.C.No.2720/2008. It appears anterior to the presentation of the petition, they have entered into an agreement regarding their mutual obligations. The petition for divorce by consent came up for consideration before the Family Court on 17.4.2009 after the lapse of statutory period of six months. It was adjourned to 20.6.2009. The respondent changed his Counsel on 3.7.2009. The appellant was unable to be present in the Court due to business commitments. The proceedings were adjourned to 24.7.2009. The respondent engaged yet another Counsel. The respondent also filed a Memo for withdrawal of his consent. The case was posted for objection of the appellant to 27.7.2009. Objections were filed by the appellant setting out about how the respondent is going back on the terms of the compromise all hearing both the. parties and looking into the Memo as well as objections, the Court passed the order holding that once the consent has been withdrawn, the Court loses jurisdiction under Section 13-B of the Act and therefore, the Family Court dismissed the petition as closed. Aggrieved by the said order of the Family Court, this appeal is filed by the appellant.
3. Learned Counsel for the appellant submits that it is not a case where the appellant has done anything, which would disentitle her to the benefit of a decree for divorce by consent. In the statement of objections filed to the Memo, she has clearly set-out under what circumstances, the respondent has gone back on his compromise. The Family Court without even holding an enquiry about the correctness of the stand of each party and without finding out as to who is at fault committed serious error in dismissing the petition for divorce by consent and therefore, he submits that a case for interference is made out.
4. Per contra, learned Counsel for the respondent contended that once the consent is withdrawn, there cannot be a decree for divorce by consent. The consent for divorce should be there on the day of filing of the petition and till the day the decree, for dissolution of the marriage is passed. During the interregnum, at any time either of the party to the petition withdraws the consent, the Court loses its jurisdiction to pass the decree. Therefore, he submits that no case for interference is made out.
5. In the light of the aforesaid facts and the rival contentions, the point that arise for our consideration is as under:
"When one of the party to the consent petition withdraws the consent is there any obligation cast on the Family Court to hold an enquiry to find out whether withdrawal of the consent is justified and then pass appropriate orders?"
6. Section 13-B of the Act reads as under:
"13-B(1) - Subject to the provisions of the 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, 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 agree
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