The court can convert divorce proceedings to mutual consent under Section 13(B) of the Hindu Marriage Act if the parties freely consent and meet the necessary conditions.

R. S. MONGIA, C. J. :- This judgment and order of ours will dispose of LPA No. 3/2001 as well as Misc. Case Nos.62 and 63 of 2002 filed in the aforesaid LPA.

2. The husband Dr. Subhrajyoti Das had filed a petition for divorce under the Hindu Marriage Act against his wife Smt. Uttama Das on the ground of desertion. The Respondent (wife) did not contest the suit. Inspite of that the trial Court, dismissed the petition on 16-9-1997 holding that there was no desertion in the eye of law. Against the judgment of the trial Court, the husband filed F.A. No. 151/97 in this Court, which was also dismissed on 3-1-2001. It may be observed here that an affidavit was also filed by the wife before the learned single Judge alleging certain things against the husband and further submitting that there was no chance of re-union any more which was a found hope when she did not contest the suit. The present L.P.A. has been filed by the husband. The parties are present before us. They have stated that because of their temperamental incompatibility with each other, situation has arisen that they cannot live together as husband and wife. In the circumstances, two Misc. Cases have been filed. Misc. Case No. 62/2002 has been filed with a prayer that the proceedings of divorce on the ground of desertion may be converted into proceedings for grant of divorce by mutual consent under Section 13(B) of the Hindu Marriage Act, Misc. Case No. 63/2002 is an application under Section 13(B), Hindu Marriage Act, 1955 made jointly by the husband and wife supported by affidavit wherein the age of the husband is mentioned as 44 years and of the wife as 36 years, for grant of divorce by mutual consent.

3. We have heard the learned counsel for the parties as also we have asked the parties themselves. They have stated that the application under Section 13(B) of the Hindu Marriage Act, 1955 has been made of their free will and without any coercion and their temperamental incompatibility to each other has rendered it impossible to live as husband and wife altogether. It has been stated in the application that their marriage took place on 6-3-1991 and they have been staying separately since May, 1994. There is no issue out of their wedlock. Whatever dowry items were there, have been exchanged between the parties. The husband has handed over a cheque in the sum of Rs. 50,000/- (Rupees fifty thousand) to the wife as one time settlement towards permanent alimony. The wife has stated that she has no claim against the husband whatsoever. Both of them have stated that a decree of divorce by mutual consent may be granted.

4. The petition for divorce was filed before the trial Court at Jorhat on 11-9-1996. The proceedings have been pending in one or the other Court as stated above. The compulsory waiting period as required under Section 13(B)(2) of the Act is hereby condoned considering that the proceedings started way back in 1996 and they have not lived together since the filing of the petition. Further both the parties are present today in Court.

5. Considering the facts and circumstances of the case, we convert the proceedings of divorce to one under Section 13(B) of the Hindu Marriage Act, 1955 as we are of the view that it is almost impossible on the part of the husband and wife to live together. They are aged about 44 years and 36 years respectively and their re-marriage cannot be ruled out. Further considering the facts as mentioned in the application as also what has been orally stated by the parties, we hereby grant a decree of divorce to the parties by mutual consent. The parties have no monetary or other claims against each other. Let a decree of divorce be drawn up.

6. The appeal and the aforesaid Misc. Cases stand accordingly disposed of.

Order accordingly.