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Gujarat High Court
Judgename :B.C.PATEL, SHARAD D.DAVE
RUPA ASHOK HURRA - Appellant
Versus
ASHOK G.HURRA - Respondent
L.P.A. 373 of 1983
Decided On : 09/09/1996
Sec. 13-B of the Act casts a duty on the court, not only to satisfy that consent is in accordance with law but also to satisfy about the averments made in the petition. The court must be satisfied that averments made in the petition are true. The court, for satisfying itself, has to record the evidence of the parties on oath. After recording the evidence, court will be in a position to reach and record a finding but before that stage, if the consent is withdrawn, the Court has no jurisdiction. Law does not require the court to investigate into the reasons of withdrawal or justiciability of the same. As held by the Apex Court in Sureshta Devi vs. Om Prakash, AIR 1992 (SC) 1904 in paragraph 13, if court makes an inquiry at the instance of one of the parties against the consent of other and thereafter the decree is passed, the same cannot be regarded as a decree by mutual consent. Hence inquiry is not an idle formality. Therefore, even if inquiry is not made before the period of 18 months, right is not lost and before inquiry if the consent is withdrawn, court will have no jurisdiction to pass a decree of dissolution of marriage under Sec. 13-B of the Act. In the instant case, in our view, before inquiry, consent was withdrawn and hence court has no jurisdiction to pass a decree.
[Para 25]
(b) Hindu Marriage Act, 1955 - Sec. 13B - Divorce by mutual consent - Not admissible on account of withdrawal of consent by wife - Learned Single Judge still granted decree of divorce on ground of irretrievable break down of marriage - Held, irretrievable break down of marriage is not a ground by itself for grant of decree of divorce.
The Apex Court in the case of V. Bhagat vs. D. Bhagat, 1994 (1) SCC 337 in paragraph 21 has pointed out that. There must be extra-ordinary features to warrant grant of divorce on the basis of pleadings without a full trial. The Apex Court has pointed out that irretrievable break down of marriage is not a ground by itself. In the case on hand, so far as wife is concerned, she merely filed an application under Sec. 13-B(1) and not under Sec. 13-B(2), of the Act, participated in reconciliation proceedings and thereafter withdrew her consent. While in the case of husband, he filed an application under Sec. 13-B(1) of the Act and after six months, he alone moved the application which is again not in spirit of 13-B(2) of the Act. Thereafter, during the pendency of the proceedings, he remarried and thereafter participated in reconciliation proceedings. If wife prays for a divorce in this situation, it may be considered as an extra-ordinary feature because her husband has remarried and she may not like to stay with him or them. For the reasons stated, they were not staying together and the incidnet of second marriage of husband had made the situation worst for her. Therefore, for a wife, it may be an extraordinary feature for seeking divorce without a trial, but not for the husband. In the absence of extraordinary features, and as husband has committed a wrong, he cannot plead that divorce be granted on the ground of irretrievable break down of marriage. In view of the Apex Courts judgment, irretrievable break down of marriage itself is not a ground.
[Para 35]
(c) Hindu Marriage Act, 1955 - Secs. 13 & 15 - Divorce - Ground of irretrievable break down of marrige - Husband remarried during pendency of proceedings and a child is born out of marriage - Husband thus committed a wrong, he can not be allowed to seek divorce on ground of irretrievable break down of marriage.
We would refer to the decision of the Apex Court in the case of Prakash Chand Sharma vs. Vimlesh, reported in 1995 Suppl. (4) SCC 642. The husband therein had remarried during the pendency of second appeal preferred by wife against the divorce. The said appeal was delayed by three days, but it was instituted and pending on the date of second marriage. The Apex Court held that marriage was hit by Sec. 15 of the Act. Husband pleaded that divorce should be granted on the ground of irretrivable break down of the first marriage, particularly in view of his remarriage and birth of a child out of the remarriage. Court held that husband cannot be given benefit of his own wrong. Equity demands clean hands. Therefore, in the instant case, in view of the aforesaid decision, husband cannot ask for a decree of dissolution of marriage on the ground of irretrievable break down of the marriage.
[Para 36]
(d) Hindu Marriage Act, 1955 - Secs. 13, 13B & 23 - Crosd proceedings for divorce under Sec. 13 filed by both parties pending - During pendency of such proceedings parties applying for divorce by mutual consent under Sec. 13B - Decree without strictly following the procedure under Sec. 13B(2) but satisfying about requirement of Sec. 23 granted - Decree not vitiated.
It appears that parties litigating since along, if at a later stage they jointly move the Court under Sec. 13-B of the Act, the Court can dissolve a marriage by a decree of divorce between two Hindus on the basis of a compromise entered into between the parties during the pendency of the divorce petition without strictly following the procedure under Sec. 13-B (2) of the Act, but on satisfying itself of not only requirement of Sec. 23(1)(c) but also of Sec. 23(1)(bb) of the Act. Thus, when husband and wife are jointly requesting for dissolution of marriage during the pending proceedings for divorce under Sec. 13, on being satisfied, the Court may not insist to follow strict procedure under Sec. 13-B of the Act. One must not forget that consent continues and is not withdrawn.
[Para 29]
(e) Constitution of India, 1950 - Art. 142 - Power under - Supreme Court invested with such power - High Court has no power similar to such powers - Even if such powers are conferred in the particular facts & circumstances of the instant case it would not be proper to exercise such power looking to the conduct of husband who is claiming the divorce.
This Court has no power similar to Art. 142 of the Constitution and even if similar powers are conferred, in the peculiar facts and circumstances of the instant case, it would not be proper on our part to exercise such powers, because it is not the wife who is claiming the divorce but it is the husband who is claiming a decree of divorce and looking to the conduct of the husband, who has acted in disregard of provisions of the act, cannot get the benefit of his own wrong, and therefore we would not like to exercise such powers, if any.
[Para 41]
( 1 ) ). This Letters Patent Appeal is preferred by original petitioner no. 2 in the Hindu Marriage Petition and original respondent in the Civil Appeal, being aggrieved by the judgment and order passed by the learned single Judge (Coram : S. D. Shah, J.) on 15-3-1996 in Civil Appeal No. 1070 of 1987 (Reported in 1996 (2) glr 650 ).
( 2 ) ). Without passing the formal order of "admission", we have heard the matter as if it is admitted. We have given full opportunity to the learned Advocates appearing for the parties to make their submissions as if the appeal is finally heard.
( 3 ) ). Facts leading to the filing of the present L. P. A. succinctly stated, are as under :-3. 1 The parties to the proceedings submitted a joint application before the City civil Court, Ahmedabad as contemplated under Sec. 13b of the Hindu Marriage act, 1955 (hereinafter referred to as the Act) for divorce by mutual consent on or about 21-8-1984, which has been numbered as H. M. P. No. 248 of 1984, wherein petitioner No. 1 is Ashok G. Hurra (hereinafter referred to as the husband) and petitioner No. 2 is Rupa (hereinafter referred to as the wife ). This application for divorce by mutual consent was presented before the Registrar, City Civil Court, ahmedabad, who admitted the application on the same day and kept over till six months. The proceedings were not placed before the Court at that time and the parties have not appeared before the learned trial Judge. Probably, the practice prevailing in the Court is that the matter should be kept over till six months in view of the provisions contained in Sec. 13b (2) of the Act. Section 13b (2) requires motion by both the parties. However, in the instant case, on behalf of the husband, an application Exh. 4 was tendered inter alia contending that the matter be placed before the Court for hearing. Accordingly, the application was placed before the Court for hearing on 15-4-1985. As the matter was placed on the Board for the first time and the Advocate for the wife being unaware (Exh. 4 being not a joint application), he requested the Court, vide Exh. 5, to grant time as wife was not informed and the matter was adjourned to 24-4-1985. On 24-4-1985 and 26-4-1985, the matter could not be proceeded on account of disturbance in the City. On 6-8-1985, Mr. Pathak, learned Advocate for wife filed his appearance. On 9-9-1985, the case was adjourned to 16-9-1985 and the Court conducted the proceedings in Chamber for reconciliation. The matter was adjourned to 30-9-1995 and in that date also, the matter was taken in chamber and the trial Judge tried for reconciliation and the matter was adjourned to 10-10-1985. The learned Advocates for the parties, on 10- 10-1985 jointly requested for time as attempts were being made for reconciliation and the Court adjourned the matter to 21-10-1985. Thereafter on 21-10-1985, 31- 10-1985 and 25-11-1985, the adjourned dates, the matter could not be taken up as the learned Judge was on leave. Thereafter, on 9-12-1985, the same was on Board and the learned Advocates jointly requested, vide Exh. 8, for time as the parties were negotiating for settlement and it was very likely that the matter may be settled. On 18-12-1985 and 26-12-1985, the learned Judge was on leave and the matter was adjourned. On 10-1-1986, learned Advocate for wife submitted an application for adjournment as he was out of station and the case was adjourned to 24-1-1986. On 24-1-1986, learned Advocate for husband applied for time, vide Exh. 10, on the ground that the husband is unable to remain present as he is engaged in other works and the Court adjourned the matter to 17-2-1986. On that date the matter was adjourned to 7-3-1986. On 7-3-1986, the matter could not be taken up as the learned judge was on leave and the matter was adjourned to 27-3-1986 and on that date wife withdrew her consent stating in the application that "dissolution of their marriage is not in the interest of the applicants and that
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