The withdrawal of mutual consent by either party during the waiting period can invalidate a divorce petition filed under Section 13-B of the Hindu Marriage Act, 1955.

JUDGMENT :

This Matrimonial Appeal has been filed questioning the legality and propriety of the order dated 15.10.2015 passed by the learned Judge, Family Court, Puri in C.P. No. 249 of 2014 rejecting an application filed by the parties under Section 13-B of the Hindu Marriage Act, 1955 (for short ‘the Act, 1955’) for divorce by mutual consent.

2. The appellant (husband) instituted Civil Proceeding No. 175 of 2014 in the court of learned Judge, Family Court, Puri under Section 9 of the Act, 1955 against the respondent (wife) for a decree for restitution of conjugal rights. During pendency of the said proceeding, both the parties to this appeal decided to dissolve the marriage mutually by a decree of divorce and accordingly, they filed a joint petition under Section 13-B of the Act, 1955, which was registered as C.P. No. 249 of 2014. In the said petition filed under Section 13-B of the Act, 1955, both the parties agreed that the appellant (husband) would pay a sum of Rs. 40,500/- to the respondent (wife) towards permanent alimony. On 17.8.2015, both the parties were examined as P.W. 1 and R.W. 1 respectively. In course of examination, the respondent (R.W.1) admitted that she had received a sum of Rs. 40,500/- from her husband (appellant). The matter was then posted to 22.8.2015 for argument and on that date, the argument was closed. The matter was then posted to 2.9.2015 for judgment. On 2.9.2015, the respondent (wife) filed an objection petition praying, inter alia, not to pronounce the judgment and to dismiss the petition under Section 13-B of the Act, 1955. In the said petition, the respondent (wife) had taken a stand on affidavit that at the instance of the gentlemen of the village, namely, Pramod Swain, Pravakar Jena, Surath Biswal and Ramesh Muduli, she had signed on revenue stamp and deposed before the learned Judge, Family Court, Puri that she had received the amount of Rs. 40,500/-, as the above named gentlemen assured to pay her the said amount later after reaching the village on the plea of possibility of theft of money, if paid in Court. Believing such assurances of the gentlemen, she had signed on the affidavit and deposed before the Court that she had received money from the appellant towards her permanent alimony but in fact she was never paid agreed amount nor she has received the same and hence divorce by mutual consent should not be allowed.

3. The appellant filed objection to the said petition denying the allegations made therein. The appellant re-affirmed that the respondent had signed on Ext. 1, i.e. the receipt, after receiving the amount of Rs. 40,500/-. Thus, he prayed to reject the wife’s application and allow the petition under Section 13-B of the Act, 1955.

4. The learned Judge, Family Court, Puri upon hearing the parties held that since there was no mutual consent between both the parties for divorce, the case filed under Section 13-B of the Act, 1955 for divorce by mutual consent would not be maintainable in the eye of law and dismissed the same vide impugned order dated 15.10.2015, which is assailed in this appeal.

5. Mr. Mishra, learned counsel for the appellant-husband submitted that after receiving the amount, the respondent-wife singed on the receipt (Ext.1) in presence of the gentlemen of the village. Further she got herself examined as R.W. 1 and deposed that she had received a sum of Rs.40.500/- from the appellant. After closure of argument, the C.P. was posted for judgment. Thus, she had no scope to file any petition at this stage, more particularly on the date of pronouncement of judgment, contrary to the materials on record as well as her own statement on oath. Learned Judge, Family Court had also no scope to entertain such a petition. Hence, the impugned judgment is not sustainable in the eyes of law.

6. Mr. Sahoo, learned counsel for the respondent, however, supported the impugned judgment and submitted that the respondent-wife on good-faith, had singed on the receipt (Ext.1) and deposed in t