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Gujarat High Court
Judgename :S.D.Shah
ASHOK GOVINDRAM HURRA - Appellant
Versus
RUPA ASHOK HURRA - Respondent
C.A. 1070 of 1987
Decided On : 03/15/1996
From the views expressed by two out of three High Courts whose opinion is approved by the Apex Court it cannot be said that those High Courts have taken the view that in the absence of joint motion by the two parties not earlier than six months and later than 18 months after the date of presentation of the petition, if the petition is not withdrawn, in the meantime, the court shall proceed to pass a decree of dissolution of marriage after hearing the parties and after making such enquiry as it thinks fit. Such proposition did not flow from the second opinion expressed by the High Courts, impliedly it can be said that the period between 6 months to 18 months from the date of the presentation of the petiton is taken to be a crucial period within which the parties to joint petition for divorce by mutual consent may brood over their decision, may in a calm and compose manner decide the consequences of their decision, may consult other relatives, elderly persons, friends and well-wishers. It is during this crucial period that decision to whithdraw or revoke the consent or even to withdraw the petition is to be taken, otherwise the words "if the petition is not withdrawn in the meantime" would be rendered meaningless and otiose. Though the right to unilateral withdrawal of consent is expressly, not recognised by the Apex Court by disapproving the opinion of first group of High Courts the Apex Court has while approving the opinion of the second group of High Courts stating that the mutual consent given by the parties to a petition for dissolution of marriage must subsist or exist till the decree of divorce is passed has ommitted to notice that such proposition is not reached or laid down by the opinion expressed by the second group of High Courts which is expressly approved, submits the learned Counsel for the appellant. Secondly, it was submitted that when period of 18 months was over and the petition was not withdrawn the court has to be satisfied after making such enquiries as it thinks fit about the following factors :
(i) That the marriage has been solemnized. (ii) That the averments in the petition are true, meaning thereby, the ingredients of Sec. 13B(1) are satisfied.
[Para 46]
This Court would have no hesitation in holding that Sec. 13B(2) makes it obligatory upon the Court by use of the mandatory word shall that once the period of interrregnum or transitional period starting from six months from the date of the presentation of the petition till the expiry of the period of 18 months from the date of the petition was over, if the petition is not withdrawn our consent is not revoked in the meantime, the Court shall pass a decree. It may be noted that the limited enquiry which the Court is expected to make under Sec. 13B(2) is to the effect that -
(i)
the marriage has been solemnised;
(ii)
that averments made in the petition, namely,
(a)
that the parties have separated for a period of one year or more, and
(b)
they have not been able to live together, and
(c)
that they have mutually agreed that the marriage should be dissolved are satisfied.
[Para 70]
The Court has to ascertain that the aforesaid averments made in the petition, consistent with the requirement of Sec. 13B(1) were true and if the Court was satisfied that they were true and that the consent either of the spouses was not vitiated under Sec. 23(1)(bb), it shall pass a decree of divorce. In the opinion of this Court therefore withdrawal or revocation of the consent by either spouse after the expiry of the period of 18 months was discouraged by the Legislature as after period of interregnum, revocation of consent was not permissible and that it was not essential that such consent must subsist till the decree of dissolution is passed.
[Para 71]
(b) Hindu Marriage Act, 1956 - Secs. 13B, 13B(2) & 23(1)(bb) - Withdrawal of consent for dissolution of marriage after expiry of 18 months from date of presentation of petition - Such withdrawal of consent is not permissible unless obtained by undue influence or duress - Court must pass decree of divorce under Sec. 13B(2).
Court is of the opinion that under Sec. 13B (2) after expiry of period of six months from the date of the presentation of the petition under Sec. 13B (i) for divorce by mutual consent, if upto a period of eighteen months from such date, if the petition or consent is not withdrawn in the meantime, i.e. interregnum or transitional period the court shall and must pass a decree after proper enquiry, meaning thereby, inquiry as to whether ingredients of Sec. 13B (1) were satisfied and if answer is in the affirmative it must pass a decree for dissolution of marriage.
[Para 49]
(c) Hindu Law - Divorce - Grant of - If the Court finds that the marriage between the spouses is irretrievably broken it becomes the duty of the Court to exercise power & to dissolve the marriage by a decree of divorce. Hindu Marriage Act, 1956 Sec. 13B, 13(1)(1a).
If the court finds that the marriage between the spouses is irretrievably broken, it becomes the duty of the court to exercise power and to dissolve the marriage continuance of which is not going to serve and purpose as the marriage is practically and emotionally dead. The appellant has even married second wife as back as 1985 and has got a male child out of such wedlock and that the parties have been litigating by instituting one after another proceeding in the courts of law. To Exploit the situation and to bargain toughly with the husband the wife changed her mind and in the year 1986, after expiry of a period of 18 months from the date of the presentation of petition under Sec. 13B came forward with the ruse that according to her there was possibility of reunion and that therefore she was withdrawing/revoking her consent. In my opinion, such an application was a clear attempt on the part of the wife to add to the miseries of husband more particularly when he has married another woman and was having child out of second marriage. She in no uncertain terms stated before the Court that reunion was out of question from the date the husband remarried and that the marriage between them was irretrievably broken. There was no matrimonial tie love or affection existing between the parties. It was in this fact situation that in my opinion the present case is also one where this court must grant a decree of dissolution of marriage in favour of appellant-husband thereby dissolving the marriage with immediate effect.
[Para 61]
( 1 ) THIS Civil Appeal is directed against the judgment and decree of the City Civil Court at Ahmedabad in Hindu Marriage Petition No. 248 of 1984 which was filed jointly by the appellant-husband and respondent-wife for divorce by mutual consent under S. 13b of the Hindu Marriage Act, 1955 (hereinafter referred to as the said "act" ). By impugned judgment and decree dated 17th October, 1986, the learned trial Judge has dismissed the petition for divorce by mutual consent. The appellant husband is aggrieved by such judgment and decree and hence he has approached this Court by way of this Civil Appeal.
( 2 ) AT this stage it would be necessary to briefly state the facts which led to filing of Hindu Marriage Petition No. 248 of 1984 which are as under : (i) The marriage between the appellant-husband and the respondent-wife was solemnised on 3rd December, 1970 according to Hindu rites at Ahmedabad and thereafter the husband and wife resided together at the residence of the husband at Ahmedabad. It was a love marriage by the parties to the marriage, which developed during their college days when they accepted each other to be a good match for becoming the life partner which love relation ultimately culminated into solemnisation of Hindu marriage. (ii) After some time (pleading in this regard is not very clear) but within a span of four to five years, there were serious differences of opinion between the parties and as averred in the memo of petition for divorce by mutual consent, it was not possible for them to stay together and so since 30th June, 1983 they have started residing separately. It is factually a long period of 13 years after marriage but then during course of reconciliation proceeding it was disclosed that within five years of marriage actually serious differences of opinion arose between the husband and the wife. (iii) In the plaint of the joint petition for divorce by mutual consent both the parties further averred that since 30th June, 1983 till they filed the petition on 21st august, 1984, they had not lived together as husband and wife and there was no cohabitation between the parties. Both of them being highly educated and intelligent and independently manning their own affairs and businesses, they realised that their marriage has failed and therefore, they have decided to seek a dissolution of the marriage of their own free will, without any pressure or undue influence from any quarter. They also averred in the petition that all the matters regarding ornaments, clothes and other movables have been settled between them and wife has renounced her right to claim maintenance and that they have simply sought a decree of dissolution of the marriage by mutual consent. (iv) Since the Hindu Marriage Petition was filed on 21st August, 1984, in view of the provisions of S. 13b (2), at the expiry of period of six months, motion of both the parties was required to be made but on 4th of April, 1985, the appellanthusband alone moved an application at Exhibit 4 for taking the Hindu Marriage petition on Board and to proceed to decide the same and the matter was accordingly listed before the City Civil Judge. On 15th of April, 1985, the hearing of the petition commenced and the same was adjourned at the joint application of the Advocates of the husband and wife. Thereafter on 24th April, 1985 and 26th June, 1985, the matter was notified before the Court, but, due to disturbances in the City of Ahmedabad and the sudden strike of the staff, it was adjourned to 6th of August, 1985. On 6th August, 1985, wife engaged another Advocate who filed his Vakalat Patra and at the request of the wife the hearing was adjourned. On 9th September, 1985, rojkam of the Court reads that at the oral request, the matter was adjourned to 16th September, 1985 and on that date attempts were made by the learned trial Judge to bring about reconciliation between the parties in his Chamber. It appears that with the change in allocation of wor
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