An appellate court can grant divorce based on mutual consent without necessitating a return to Family Court for a fresh petition under the Special Marriage Act.

JUDGMENT :

ARINDAM SINHA, J.

1. Mr. Roy, learned advocate appears on behalf of appellant-wife and Mr. Sahoo, learned advocate, for respondent-husband. Submission at the Bar is that parties have agreed to go their separate ways without direction for payment of permanent alimony. Parties want divorce. Further submission is that impugned judgment dated 20^th December, 2021 of the Family Court, dismissing the proceeding under section 27 in Special Marriage Act, 1954 on refusing to grant divorce, be accordingly set aside in appeal.

2. On query from Court Mr. Roy submits, appellate power is sufficient for setting aside impugned judgment and granting the divorce, in spite of alternative proceeding for divorce by mutual consent provided for by section 28. Mr. Sahoo submits, it would be better if this Court grants divorce instead of compelling parties to approach the Family Court by initiating fresh proceeding for divorce by mutual consent.

3. Mr. Roy relies on several judgments.

i) Jyoti Prakash Jena v. Kaveri Patra , reported in 2015 (I) OLR 388. He submits, co-ordinate Bench had decreed divorce on setting aside impugned therein judgment, by which claim for dissolution of the marriage stood rejected.

ii) Apurba Mohan Ghosh v. Manashi Ghosh , reported in AIR 1989 CAL 115 , paragraphs 7 to 10. A Division Bench of the Calcutta High Court had considered earlier views taken and by the judgment, granted divorce by mutual consent in exercise of appellate power.

iii) Order dated 18^th December, 2018 of co-ordinate Bench in MATA no.88 of 2017 ( Sri Hitosh Kumar v. Smt. Chitralekha Pattnaik ). Here too, Mr. Roy submits, judgment and decree passed by the Family Court refusing to dissolve the marriage was set aside and divorce granted on mutual consent as per mediation report filed in the appeal.

4. Section 27 provides for divorce. Several grounds have been given in the section, enabling a spouse in a marriage to present a petition for divorce. Section 28 provides for divorce by mutual consent. As such, two separate proceedings have been provided for by the Act of 1954, to allow for dissolution of the marriage and thereby separation of the spouses.

5. Code of Civil Procedure, 1908 by order XXIII provides for withdrawal and adjustment of suits. For purpose of answering the question arisen on the forum to grant divorce by mutual consent, whether appellate Court or by separate proceeding to be instituted in the Family Court, we treat the civil proceeding to be akin to a suit. We have no quarrel with application of order XXIII to the proceeding. Section 40 provides for its application. The provision is reproduced below.

“40. Application of Act V of 1908 - Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (V of 1908).”

(emphasis supplied)

We have appellate power under section 107, the procedure subsequently given in rule 33 of order XLI. It will be sufficient for us to reproduce below section 107.

“107. Powers of Appellate Court.- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power—

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.”

(emphasis suppl