Filing a petition for mutual consent under section 13-B of the Hindu Marriage Act through an attorney is not permitted, and subsequent actions by the respondent wife do not cure the defects in the initial petition.

Vinod K.Sharma, J.

1. This appeal is directed against the order dated 21.1.2006 passed by the learned District Judge, Mansa vide which petition moved for divorce under section 13-B of the Hindu Marriage Act (for short the Act) has been ordered to be dismissed.

2. The order passed by the learned District Judge, Mansa reads as under :-

"File was fixed for final statement by the parties, in the joint petition for divorce by mutual consent. Petitioner No. 1 is stated to be living abroad and has not returned despite a couple of adjournments. When the statement initially was recorded on presentation of case on 11.2.2005, only Attorney of petitioner No. 1 made the statement for divorce by mutual consent. Since petitioner No. 1 has not appeared, the petitioner No. 2 has made the statement that this petition may be dismissed but she has also stated that she made the earlier statement regarding return of dowry articles only on the understanding that petitioner would appear and make the final statement for the grant of divorce by mutual consent and she reserves the right to take appropriate civil or criminal proceedings. The petition is dismissed, as withdrawn. File be consigned to the Record Room."

3. The reading of the order shows that the petition under section 13-B of the Act itself was not competent. The provisions of Section 13-B of the Act do not permit filing of a petition for mutual consent through attorney.

4. There was no necessity for the learned District Judge to have adjourned the case for 6 months for recording second statement as the appellant had failed to appear on the first date of hearing in support of petition under section 13-B of the Act.

5. Learned counsel for the appellant vehemently contends that there was compromise entered into between the parties wherein it was admitted that all claims have been settled and no claim left remained to be resolved, has been paid by the petitioner No. 1 to petitioner No. 2 and the parties agreed that nothing more would be claimed. Thereafter, it was not open to the respondent wife to withdraw her consent.

6. This plea of the appellant is totally misconceived. Petitioner No. 2 made a positive statement that she was misled to make such an assertion in the petition. Statement made by the petitioner No. 2 went uncontroverted before the learned court and therefore, averments made in para No. 6 of the petition regarding compromise are to be held to be wrong assertion of fact.

7. Learned counsel for the appellant also contends that subsequently another application for divorce has been filed by respondent wife, therefore, it has to be presumed that petitioner No. 2 was interested in getting divorce. The learned/ District Judge, therefore, was not justified in dismissing the application moved under section 13- B of the Act.

8. This plea is also misconceived. Considerations for granting divorce under section 13 and 13-B of the Act are altogether different. Merely because a petition under section 13-B has been dismissed, it cannot be said that because of subsequent petition filed by the wife respondent the defect in petition under section 13-B stood cured.

9. Learned counsel also contends that the second petition was filed to wriggle out the compromise entered into between the parties. This plea is also totally misconceived. Once her statement was accepted by the learned District Judge by passing of impugned judgment and decree there was hardly any reason for the wife to wriggle out of the said compromise. The contention could not be accepted in view of the judgment and decree under appeal.

10. Learned counsel for the appellant has placed reliance on the judgments of Honble Supreme Court in the cases of Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1904 and Ashok Hurra v. Rupa Bipin Zaveri, 1997(2) RCR(Civil) 330 : AIR 1997 SC 1266 to contend that unilateral withdrawal is not permissible.

11. In view of what has been observed above the authorities relied upon by the appellant have n