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IN THE HIGH COURT OF BOMBAY
D.N. Mehta M.F. Saldanha, JJ.
Leela Mahadeo Joshi (Prof.) ... Appellant.
Versus
Mahadeo Sitaram Joshi (Dr.) ... Respondent.
First Appeal No. 537 0f 1990, decided on 9-8-1990.
Advocates appeared :
K.D. Shah, for the appellant.
Kumari P.H. Kantharia, for the respondent.
Held-Adequate provision made in Section 13 read with Rule 37 for legal representation. In absence of convincing reasons, such permission ought not to be turned down.
Section 13-B-Divorce by mutual consent-Petition for-Dismissed by Family Court-Appeal against-Proved by petitioners that both husband and wife Jiving separately for a period of more than one year and that they had not been able to Jive together and that they had mutually agreed that the marriage should be dissolved.
Held, All these ingredients necessary under Section 13-B for obtaining divorce by mutual consent proved-Trial Judge ought not to have denied petitioners prayer for divorce.
Section 13-B-Joint petition by husband and wife for divorce on ground of matual consent-Dismissal by Family Court-Appeal against.
Held-All three ingredients required under Section 13-B proved by parties-Both parties appeared before Court voluntarily and had mutually agreed upon divorce-Personal prettifications not to be allowed to influence mind of a Judge-Family Courts to bear m mind Deed for utmost expediency while dealing with class of matrimonial litigation-Decree for divorce by mutual Consent to be passed.
Section 13-B-Term, have been living separately and not having been able to live together-Whether on above basis divorce by mutual consent can be granted.
Held-In case out of economic necessity or for reasons of employment, spouses have been living separately and conversely have not been able to live together, Court will have to find out from averments in petition or from oral evidence as to whether it is because of breakdown of matrimonial relations or for any other reason Section 13-B presupposes only those cases were cohabitation, which is essential ingredient of a valid and subsisting marriage has come to end because of total breakdown of the matrimonial relationship. Hence it is essential to find out for Court the total breakdown of matrimonial relationship for granting divorce under Section I3-B.
Section 13-B-Diverce by mutual consent-Parties living separately or not able to live together-Parties living separately for ignore than a year-Applying for divorce by mutual consent- Held, parties entitled to divorce.
After incorporation of this provision, a duty is cast on the Court. Where the ingredients of the section are satisfied, to pall a decree without going into an investigation of other extraneous issues. Sub-section (2) of Section l3-B enjoins upon the Court, that on the application of the parties made not earlier than six months after the date of presentation of the petition and not later than eighteen months after the said date, that it should after hearing the parties and making an enquiry that a marriage bad been solemnized. That the avernments in the petition are true, that it shall pass a decree declaring the marriage to be dissolved with effect from the date of the decree. The three ingredients with regards to which the Court must satisfy itself are, that the petition must be a joint petition prescribed by both the pal ties praying for a divorce by mutal consent, secondly, they have been living separately for a period of one year or more prior to the presentation of the petition and lastly, that they have not been able-to live together and that they have mutually agreed that the marriage should be dissolved the safeguards as are enumerated in Section 23 must undoubtedly be borne in mind, namely that the consent of the parties bas not been obtained by force, fraud or undue influence and this aspect must necessarily be ascertained by the trial Court.
The term have been living separately will have to be read in conjunction with "not having been able to live together". It is undoubtedly clear that if out of economic necessity or for reasons of employment. The spouses have been living separately and conversely, have not been able to live together, the Court will have to find out - from the averments in the petition or from the oral evidence as to whether it is because of a breakdown of the matrimonial relations or for any other reason. Section 13-B presupposes only those cases where cohabitation, which is the essential ingredient of a valid and subsisting marriage, bas come to an end because of a total breakdown of the matrimonial relationship.
2. The brief facts are that the appellant and the respondent were married according to Hindu Vedic Rites on 5-12-1956. On 28-7-1960, the appellant gave birth to a son named Satish. The parties lived together happily till December 1986. However, in December 1986, the respondent suffered certain financial losses in his business as a result of which disputes and dissensions arose between the appellant and the respondent, and they decided to live separately. It is the evidence of the respondent that he and his wife have been living separately for about five years prior to the filing of the petition.
3. On 26-10-1989, the respondent and the appellant as petitioner No. 1 and petitioner No.2 respectively filed a petition for divorce by mutual consent under section 13-B of the Hindu Marriage Act, 1955. In the petition, the petitioners averred that they had been living separately from each other since December 1986. They stated that due to incompatibility of tamperament and certain differences between them, it was not possible for them to live together.
4. During the course of the hearing of the petition, the parties filed certain consent terms with regard to the payment to the wife in lieu of relinquishment of the residence by her. The consent terms also provided for the marriage expenses of the son Satish.
5. During the course of the hearing, the learned trial Judge recorded the evidence of the appellant as also the respondent. The respondent-husband stated that it was not possible for the him to live together with his wife due to differences of temperament. The learned Judge thereupon queried the respondent-husband as to why he wanted to dissolve his marriage after living with his wife for 30 years. The respondents explained that after he had suffered certain financial lossses in his business, he had suffered a nervous breakdown. Because he had stood guarantee in his business to the extent of two crores rupees, his wife disapproved of his action and quarrels ensued. The respondent stated that he sought divorce as that was the only way he could cure himself of the tension and nerves which plagued him. When the appellant-wife entered the witness-box, the learned trial Judge again queried her whether she thought it was necessary to obtain a divorce after having lived together with her husband for 30 years. The appellant-wife replied that there were differences of opinion and clashes between her and her husband and that in order to obtain mental peace, it was best that she obtained a divorce from her husband.
6. From the above evidence given by the appellant and the respondent, it became apparent that the two petitioners to the divorce petition had proved that they had living separately for a period of more than one year and that they had not been able to live together and that they had mutually agreed that the marriage should be dissolved. Hence all the ingredients necessary under section 13-B of the Hindu Marriage Act for obtained a divorce by mutual consent had been proved. The learned trial Judge, however, came to the conclusion that the parties had not proved that they were unable to live together. The learned trial Judge also came to the conclusion that the dissolution of marriage was sought with some ulterior motive such as saving the property from prospective actions of the creditors and that the divorce appeared to be an eye-wash. The learned trial Jud
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