JUDGMENT - M.S. DESHPANDE, J.:---This revision application is directed against the order passed by the trial Court, refusing to record a compromise between the parties because it did not come within the provisions of section 13-B of the Hindu Marriage Act.

2. The present applicant-wife had filed a petition under section 13(1)(i)(a) of the Hindu Marriage Act for a decree of divorce on the ground of cruelty. The husband-present respondent also filed a petition under section 13(1) of the Hindu Marriage Act for a decree of divorce on the ground that the wife had treated him with cruelty.

3. On 12th March, 1986, the parties filed an application stating that without going into the correctness or otherwise of the allegations made by either of them, it was evident that the marriage had irretrievably broken down and they cannot live under one roof and so the marriage should be dissolved by a decree of divorce. Without prejudice to the wife's claim for alimony pendente lite or permanent, the trial Court held that the application was not one which could be entertained under section 13-B of the Hindu Marriage Act and rejected the application.

4. Shri Bhangade, the learned Counsel for the applicant urged that in view of the provision of section 13-B of the Hindu Marriage Act, a decree of divorce by mutual consent could be passed. Section 13-B reads as follows :---

"13-B. (1) 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, 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) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

It is apparent that this section as well as section 13-A were inserted by section 8 of Act 68 of 1976. Shri Bhangade urged that the question of absence of collusion which was a requirement which has to be established before recourse can be had to the provisions of section 13 of the Act, would not be relevant because the relief which the parties sought, can be granted by resorting to the provisions of section 13-B of the Act. Section 13 of the Hindu Marriage Act enumerates the grounds on which a decree for divorce can be granted and under section 10(1) of the Act a petition for a decree may be presented on the same grounds as specified under Section 13(1). It is, therefore, clear that whether it is a decree for divorce or for judicial separation, it is necessary to make out one of the grounds specified under section 13(1). Section 13-A which has been added by the amendment, does not so enlarge the powers of the Court as to grant a decree for judicial separation irrespective of the provisions of section 13(1), but vests only a discretion in the Court to grant the alternative and lesser relief of judicial separation in a petition for divorce provided the requisite ground contemplated by section 13 of the Act has been established.

5. In the present case, the two petitions before the trial Court did not reach the stage of trial and when the application for recording the compromise was made on March 12, 1986, none of the grounds on which a decree of divorce could be granted had been established. There is no dispute about this position a

Click Here to Read the rest of this document