Under Section 13B(2) of the Hindu Marriage Act, a court cannot grant a divorce on mutual consent unless both parties jointly move the application after six months.

( 1 ) THIS appeal is at the instance of a wife in proceedings under Section 13b of the Hindu Marriage Act ("act") and is directed against Judgment and Decree dated July 12, 2004 passed by the learned Trial Judge thereby passing a decree for divorce on mutual consent.

( 2 ) THE only question that arises for determination in this appeal is whether a Court dealing with an application under Section 13b of the Act is entitled to pass a decree on a petition under Section 13b of the Act notwithstanding the fact that on the date of hearing fixed after six months in terms of sub-section 2 thereof, one of the parties did not appear and jointly move the application.

( 3 ) THE facts giving rise to filing of this appeal may be summed up thus :-on 23rd September, 2003 an application under Section 13b of the Act was filed by both the parties and the Court fixed on 27th July, 2004 for hearing. Subsequently, on 23rd April, the husband filed a petition with the prayer for shifting the date of hearing to an earlier date. Although the copy of such application was served upon the wife, yet, nobody appeared on her behalf and the Court preponed the date to 27th April, 2004.

( 4 ) ON 27th April, 2004 due to resolution of the Bar Association, the learned Advocates underwent a cease-work and the Court suo rnotu adjourned the hearing and fixed the next date on May 5, 2004 for hearing.

( 5 ) ON May 5, 2004 the husband filed hazira and had given evidence in support of the application of divorce on mutual consent. At that time, the learned lawyer for the wife submitted that he had not received any instruction from his client and the Court in such circumstances, fixed on 12th July, 2004 for evidence of the wife and also for further orders.

( 6 ) ON 12th July, 2004, the husband alone appeared but none appeared on behalf of the wife and the Court after hearing the learned Counsel for the husband allowed the application by relying upon the decision of a Division bench of this Court in the case of Subhajyoti Majumdar v. Arunima Majumdar reported in 95 Calwn 963 and also of a decision of Punjab and Haryana High court in the case of Nachhattar Singh v. Harcharan Kaur reported in AIR 1986 Punjab and Hariana page 201. According to the learned Trial Judge, when wife was not coming forward to oppose the prayer of divorce, it should be presumed that wife had not withdrawn her consent and as such, the decree might be passed on the basis of materials-on-record.

( 7 ) MR. Chatterjee, the learned Senior Counsel appearing on behalf of wife/appellant has contended that the learned Trial Judge acted without jurisdiction in passing such decree when on the date of hearing, the wife was not present. Mr. Chatterjee contends that the decision of this Court relied upon by the learned Trial Judge is impliedly overruled by the decision of the Supreme Court in the case of Smt. Sureshta Devi v. Om Prakash reported in 1991 (2) SCC 25. So farthe decision of the Punjab and Hariana high Court referred to in the judgment of the learned Trial Judge is concerned mr. Chatterjee contends that the said decision has been reversed by the division Bench of the same High Court as would appear from the decision of the Supreme Court in the case of Smt. Sureshta Devi (supra ).

( 8 ) MR. Banerjee, the learned Senior Advocate appearing on behalf of respondent has, however, opposed the aforesaid contentions of Mr. Chatterjee and it is contended that in the decision of the Supreme Court referred to above, one of the parties specifically withdrew the consent earlier given, but in the case before us, there is no specific withdrawal of the consent and from the mere fact that the wife was not coming forward to support the application, it cannot be presumed that she had withdrawn her consent earlier given. Mr. Banerjee further relied upon the provisions contained in section 23 (1) (bb) of the Hindu Marriage Act and contended that all that is required to be seen at the time of hearing o