Mutual consent under Section 13(B) of the Hindu Marriage Act must be continuous until decree issuance; absence of one party negates consent and justifies application dismissal.

ORDER :

Rajani Dubey J.

1. Heard on admission.

2. The appellant has filed the present appeal against the order dated 11.09.2024 passed by the learned 3^rd Additional Principal Judge, Family Court, Durg (C.G.) in Civil Suit No.814/2023, whereby the learned Family Court dismissed the application filed by the appellant and the respondent jointly under Section 13 (B) of the Hindu Marriage Act.

3. Brief facts of the case are that the marriage of the appellant and the respondent was solemnized on 14.04.2000 as per Hindu Rites and Rituals at Durg but soon after their marriage, dispute arose between them and they started living separately. Subsequently, they filed mutual divorce case under Section 13 (B) of the Hindu Marriage Act on the condition that the appellant would pay Rs.20 Lakhs to the respondent wife, which according to the appellant he has already paid the said amount, but after getting the said amount, the wife did not appear before the learned Family Court, as such the appellant’s application has been dismissed by the learned Family Court, against which the present appeal has been filed.

4. Learned counsel for the appellant submits that the order passed by the learned Family Court is erroneous, arbitrary and contrary to material available on record and therefore the same is liable to be set aside. The learned Family Court has failed to appreciate that the respondent deliberately with malafide intention was not appearing before the Family Court for recording her statement as she already received total maintenance amount of Rs.20,00,000/- from the appellant. On the date of filing of joint application under Section 13 (B) of Hindu Marriage Act, appellant paid the amount of Rs. 10,00,000/- to respondent and it is already mentioned in their application filed jointly by appellant and respondent but the Family Court while dismissing the application mentioned that in record it has not been shown and for proving the same it requires the presence of respondent and in her absence, application for mutual divorce cannot be entertained. Thus, the impugned order deserves to be set aside.

5. No one appears on behalf of the respondent despite the notice being served.

6. Heard learned counsel for the appellant and perused the material available on record.

7. It is clear from the record of the learned Trial Court that both the parties husband and wife filed application under Section 13 (B) of the Hindu Marriage Act before the learned Family Court on 11.08.2023. The learned Family Court registered the case on 22.08.2023 and counseling was done between both the parties but they were not ready to live together and the case was again fixed for counseling on 27.10.2023, but on that date compromise was not done and the case was fixed for statement of the parties on 20.11.2023. On 20.11.2023, case was adjourned due to condolence meet. On 04.12.2023, demand draft of Rs.10 Lakhs was filed by the applicant No.1 husband i.e. the appellant which was attached with the file and the case was fixed for statement on 12.02.2024. On 12.02.2024 again time was sought by both the parties and on 26.02.2024, demand draft was given to the applicant No.2 wife, which was encashed by her and the same came in the order sheet and the case was fixed for 07.03.2024 and subsequently also the case was adjourned on 23.03.2024, 05.04.2024, 16.04.2024 and 18.04.2024. The applicant No.2 remained absent so notice was issued to the applicant No.2. On 29.06.2024, service report of applicant No.2 was received but she remained absent and thereafter also case was fixed for 6 times but she