IMPORTANT POINT
Mutual consent divorce can be granted even if one party did not initially contest, provided both parties agree to the terms and conditions.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT)

1. The present appeal is filed by the original plaintiff who happens to be the wife of the respondent under Section 19 of the Family Courts Act, 1984 (hereinafter to be referred to as ‘the Act, 1984’ for short) challenging the impugned judgement and decree dated 24.07.2023 passed by the Principal Judge, Family Court, Mehsana, in Family Suit No.130 of 2021.

2. For the sake of brevity, the parties may be referred as per the original status in the suit.

3. The short facts of the case appears to be as under:

3.1 The plaintiff got married on 04.10.2007 with the defendant and out of their wedlock they were blessed with a son viz. Nikshit on 08.01.2013. It appears that the differences started thereafter which ultimately resulted into a mutual divorce executed by the parties vide deed of divorce on 01.09.2021.

3.2 The plaintiff-wife appears to have filed a Family Suit No.130 of 2021 before the Family Court, Mehsana, under Section 13(1)(B) of the Hindu Marriage Act, 1955 (hereinafter to be referred to as ‘the Act, 1955’ for short). The plaintiff prayed for dissolution of marriage on ground of mutual consent and further seek permanent custody of her son ‘Nikshit’.

3.3 The notice came to be served upon the defendant-husband who never appeared before the Family Court and contested the suit.

3.4 Prima-facie, it has been observed that due to absence of defendant-husband before the Family Court, though Family Suit was filed under Section 13(B) of the Act, 1955, could not have been considered by the Court concerned but, after appreciating the evidence on record, the learned Family Court has dismissed the suit as plaintiff was unable to prove a customary divorce before the Family Court. Hence, the present appeal.

4. When this appeal was taken up for hearing, learned advocates for both the sides and their respective clients who were present before the Court on 26.11.2024, expressed their desire to mutually separate and requested this Court to pass appropriate order granting decree of divorce as per mutual consent. The order dated 26.11.2024 reads as under:

“Learned counsel for the respective parties state that the appellant and the respondent are present before the Court. They are identified by the learned counsel for the respective parties. They state that they have filed their respective affidavits that they want to mutually separate and requested the Court to pass appropriate order. S. O. to 29.11.2024.”

5. In pursuance to the said order, the appellant has preferred an application being Civil Application No.1 of 2024 seeking waiver of six months period for getting consent decree and also filed another application under Order 6 Rule 17 of the Civil Procedure Code, seeking amendment in the grounds of appeal as well as incorporation of relevant prayer in the suit. Today, those applications are being allowed by separate orders.

6. The appellant-wife has submitted an affidavit dated 19.11.2024 and respondent-husband has also submitted affidavit dated 30.11.2024 declaring their intention to stay separately as they are residing separately since 2013. The parties have agreed to the conditions which are so mentioned in the affidavit submitted by the respondent-husband to this Court on 30.11.2024 which reads as under:

“We the parties to the First- Appeal No.4114 of 2023, the applicant No.1, Appellant wife Ms.Poonam Jagdish Patel D/o. Gandalal Joitaram Patel, and Mr.Jagdish Bhagwan Patel, the husband, Appellant No.:2-Respondent do hereby solemnly affirm on oath and Jointly declare as follow.

(1) That our marriage was solemnized on 04-10-2007 followed by Hindu Rites-custom and was registered at the office of Marriage Registrar at Unjha Municipality at Sr.No.:422, Volume No.:22, at page No.24.

(2) That during the wedlock, a boy was born on 08-01- 2013 named "NIKSHIT".

(3) That, we both separated from each other since year 2013 and are not living as a Husband and Wife ever since.

(4) That, Son "NIKSHIT" is with Ap