The main legal point established in the judgment is that mutual consent must continue to subsist until the specified period under S.13-B of the Hindu Marriage Act, and a mere filing of a petition by both parties together is not sufficient for the court to pass a decree of divorce.

Dhinakar, J.

The two questions which are inter linked, on the facts of the case (1) whether this appeal is maintainable under S.19 of the Family Courts Act, 1984 and (2) whether the decree for divorce passed under S.13-B of the Hindu Marriage Act is correct can be disposed of together.

2. The appellant, and her husband, the respondent in the above M.F. A. have filed a petition before the Family Court for a decree of divorce under S.13-B of the Hindu Marriage Act. After expiry of the period of six months on the motion of the husband (the respondent herein), the Family Court look up the matter and examined him as P.W.I. The appellant was absent. Nor did she withdraw the petition. After examining the respondent, the Family Court held that as the appellant did not turn up to withdraw the petition filed under S.13-B of the Hindu Marriage Act the appellant is a consenting party to the divorce and accordingly passed a decree for divorce.

3. The respondent in this appeal raised a contention that the appeal itself is not maintainable under S.19(1) of the Family Courts Act in as much as the decree for divorce was passed on the consent of both the parties. If we hold that the decree as passed by the Family Court is a consent decree then there can be no doubt that this appeal is not maintainable. But if the facts indicate that the decree is not a consent decree then this appeal is certainly maintainable and the decree for divorce so passed by the Family Court has also to be set aside as it was an ex parte one without giving aii opportunity to the appellant herein.

4. S.13-B reads as follows:

"13B. bivorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solcmni/ed before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen most 'ifler the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition arc true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

The above provisions in the Hindu Marriage Act indicate that for the court to pass a consent decree certain essential requirements arc to be fulfilled. tinder sub-section (1) of S.13-B a petition for dissolution of marriage by a decree of divorce shall be presented before a Family Court by both the parties to a marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. So a mutual agreement to dissolve the marriage and filing of a petition together are two of the essential ingredients under S.13-B(1) of the Act. The question is whether a mere tiling of a petition together is sufficient for the Family Court to pass a decree of divorce alter the expiry of six months without a subsequent act of both the parties as contemplated under sub-section (2) of S.13-B. Sub-section (2) of S.13-B of the Hindu Marriage Act contemplates that after the expiry of six months from the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, on the motion made by both the parties the court shall, on being satisfied, after hearing the parties and after making suc