JUDGMENT :

1. The instant Civil Miscellaneous Appeal has been preferred filed against the judgment and decree dated 8.1.2016 passed by the Additional Sessions and District Judge, Gangapur City, District Sawai Madhopur (hereinafter referred to as “the trial court”) whereby the learned trial court has allowed the application filed under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act of 1955”) and passed a decree of divorce.

FACTS IN BRIEF

2. The facts necessary for a fair adjudication of the instant appeal can be briefly summarized as thus: The Appellant Kalpana Goswami and the Respondent Vipin Sharma got married in 2010, 14.7.2010 being the precise date on which their marriage was solemnized. After spending some time with each other, serious disagreements and incompatibility surfaced between them, which made it difficult for them to cohabit with each other as husband and wife even though a child was born out of their wedlock. The appellant thereafter went to her parents’ house and started living with them. After all negotiations to settle their differences failed, the parties filed a petition under Section 13-B of the Act of 1955 before the Family Court, Sawai Madhopur on 17.07.2013, which was duly transferred to the Additional District Judge, Gangapur City.

3. The matter was taken up for consideration by “the trial court” on 25.05.2015. On the said date, both the parties had appeared before “the trial court” and had willingly given affidavits, with a prayer to grant a decree of divorce. On this date i.e. 25.05.2015, the Appellant had informed the court that out of the total amount of ten lakh Rupees agreed to be given by the Respondent to her as permanent alimony, she had received a sum of Rupees five lakhs.

4. “The trial court” deferred the matter till 30.5.2015. On 30.5.2015, both the parties appeared before “the trial court” and prayed that the marriage be dissolved by mutual consent. On this date, the Appellant also informed the court that she had received the balance amount of permanent alimony i.e. Rupees five lakhs from the Respondent.

5. The matter was then deferred till 10.12.2015. On the said date, the Appellant did not appear before the court though the presence of the Respondent-husband was marked. The matter was then deferred to 12.12.2015 and thereafter to 14.12.2015. On both these dates, the Respondent-husband had appeared before the court but the Appellant-wife did not turn up. Consequently, a decree for divorce was granted by the learned trial court on 8.1.2016 in light of the application filed by the parties under Section 13-B of the Act of 1955. Aggrieved by the judgment and decree dated 8.1.2016 passed by “the trial court”, the Appellant-wife has preferred the instant Civil Miscellaneous Appeal.

ARGUMENTS BY THE COUNSELS

6. The learned counsel for the Appellant-wife has contended that the judgment and decree dated 8.1.2016 is not sustainable in the eyes of the law since it was passed ex-parte and without the consent of the Appellant-Wife. The learned counsel contended that since the wife had not appeared before “the trial court” after 30.5.2015, “the trial court” erred in presuming her consent as not withdrawn. The counsel further contended that the trial court’s reliance on the judgment passed by a Division Bench of this court in the case of Suman v. Surendra Kumar, 2002 (5) WLN 718 was wholly misconceived since the law on this point has been settled by a three-judges bench of the Hon’ble Supreme Court in Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338. The counsel finally contended that for a decree of divorce to be granted under Section 13-B of the Act of 1955, it is essential that the consent of the parties is continuous and subsists till the passing of the decree.

7. On the other hand, learned counsel for the Respondents has supported the impugned judgment and decree and placed reliance on a Division Bench judgment of this court in Surendra Kumar (Supra).

I have heard the