JUDGMENT - M.L. DUDHAT, J.:---This First Appeal is filed against the judgment and decree dated 19th February, 1994 in M.J. Petition No. 576 of 1990 passed by the learned Judge, 3rd Family Court, Bombay. By the aforesaid judgment and decree, the Family Court passed the decree of divorce under section 13-B of the Hindu Marriage Act, 1955.

2.In this appeal, the appellant who is the wife of the respondent got married with the respondent on 7-12-1986. Sometime in the month of October, 1987, appellant returned to her parental home for delivery and gave birth to a female child named Tejasari on 14-1-1988. Respondent-husband filed the present petition under section 13 of the Hindu Marriage Act for a decree of divorce against the present appellant on the grounds of cruelty and desertion i.e. under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act. The Family Court,. while delivering the judgment converted the said petition into a petition for divorce by mutual consent under section 13-B of the Act and granted divorce. The Family Court has also directed the respondent-husband to pay an amount of Rs. 40,000/- towards the permanent alimony to the present appellant and also directed the respondent-husband to pay Rs. 600/- per month towards maintenance of the child from the date of the order.

3.Mr. Kanade, the learned Counsel appearing on behalf of the appellant-wife, submitted that the appellant filed the said petition for divorce before the Family Court under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act i.e. on the grounds of cruelty and desertion. Admittedly, before the Family Court, at no point of time petition for divorce by mutual consent under section 13-B of the said Act was ever filed by the appellant and the respondent. Inspite of that, the Family Court surprisingly passed the decree under section 13-B of the Act and granted divorce by mutual consent. The aforesaid decision, according to the learned Counsel for the appellant, is illegal and without jurisdiction.

4.It is an admitted position that the present appellant filed petition for divorce on the grounds of cruelty and desertion under section 13(1)(i-a) and (i-b) of the Act. It is also admitted that there is no petition for divorce by mutual consent as contemplated under section 13-B of the Hindu Marriage Act. If that is so, one fails to understand as to how the Family Court could have passed the decree of divorce under section 13-B of the Act when the petition was filed by the appellant-wife for divorce under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act. In para 9 of the judgment, the Family Court has observed that from the statement of the petitioner and the respondent, it is clear that they are living separately for more than one year and there is no cohabitation between the parties from the date of the said separation. Appellant has claimed only the maintenance from the respondent-husband. The Family Court further observed that the parties have voluntarily prayed for dissolution of their marriage. One fails to understand as to how the Family Court can make such observations when there is no petition whatsoever by the husband for dissolution of the marriage. On these grounds the trial Court held that parties are entitled to the decree of divorce under section 13-B of the Hindu Marriage Act.

5.The Family Court has completely lost sight of the fact that in the present case, the petition is filed by the appellant-wife only for divorce under section 13(1)(i-a) and (i-b) of the Act on the grounds of cruelty and desertion. In order to pass a decree of divorce by mutual consent, both the parties have no file a petition for divorce by mutual consent on the ground that they have been living separately for a period of one year or more and that they are unable to live together and that they have mutually agreed that their marriage should be dissolved. Further, under sub-section (2) of section 13-B of the Act, after the said petition is filed, on the motion of bot

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