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2010 Supreme(P&H) 3230
2011(1) Law Herald (P&H) 108
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Alok Singh
C.R. No. 7924 of 2010
Nisha
v.
Maha Nand & Ors.
{Decided on 06/12/2010}
For the Petitioner:Mr. Sandeep K. Sharma, Advocate.
IMPORTANT POINTS
Divorce by Mutual Consent--If any of the ingredients of Section 13-B is missing than Court would be within its jurisdiction in dismissing the petition.
Divorce by Mutual Consent--Decree can be recalled while invoking Section 151 CPC on proving that fraud was played while getting the decree for dissolution of marriage.
Headnote:(A) Hindu Marriage Act, 1955, S.13-B--Divorce by Mutual Consent--Maintainability of petition--Three ingredients must be pleaded and proved are :-
(i) Parties to the divorce petition have been living separately from one year or more.
(ii) They have not been able to live together.
(iii) That they have mutually agreed that the marriage should be dissolved.
If any of the ingredients of Section 13-B is missing then Court would be within its jurisdiction in dismissing the petition under Section 13-B of the Act. (Para 5)
(B) Hindu Marriage Act, 1955, S.13-B--Divorce by Mutual Consent--Petition--Maintainability of--Civil Procedure Code, 1908, S.151--Recall of divorce decree--Mutual decree for dissolution of marriage passed under Section 13-B of the Act can be recalled while invoking Section 151 CPC on proving that fraud was played while getting the decree for dissolution of marriage. (Para 4)
(C) Hindu Marriage Act, 1955, S.13-B--Divorce by mutual consent--Recalling of divorce decree by wife--Wife contended that she was in illegal confinement of husband, hence, under the threat of husband, wife signed divorce petition and made wrong statement on oath before the Court below--Therefore, decree obtained is out come of fraud and coercion, hence, must be set aside--Petitioner signed the divorce petition and did not make any complaint during the pendency of the divorce petition which was pending for almost 8 months--Moreover, petitioner did not make any complaint to the Court while appearing in a witness box about the illegal confinement of the minor child--No reason or justification to disturb the view taken by the Court below. (Para 6)
Mr. Alok Singh, J. (Oral):- Petitioner-wife has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India assailing the order dated 24.8.2010 passed by Addl. District Judge, Rohtak thereby rejecting the application moved by the wife for recalling the divorce decree dated 10.10.2006.
2. The brief facts inter alia are that marriage between the parties was solemnized on 15.1.2001 as per hindu rites and ceremonies. Both the parties started living together and child namely Nancy was born out of this wedlock on 1.10.2002. Both the parties have filed joint petition under Section 13(B) of Hindu Marriage Act before the Court below on 23.3.2006. Both the parties have signed the petition under Section 13-B of the Act. After expiry of statuary period of 6 months statements on oath of both the parties were recorded by the Court below on 25.5.2006. Both the parties have stated on oath before the Court below that from 5.1.2005 parties are residing separately and despite of best efforts for re-conciliation made by family members, relatives and the parties, re-conciliation is not possible, hence, they have amicably agreed for divorce by mutual consent. Ultimately divorce decree was passed by the Court below on 10.10.2006. Petitioner-wife, thereafter, moved an application under Section 151 CPC for recalling the judgment dated 18.10.2006 on the ground that wrong averments were made in the petition under Section 13-B of the Act and wrong statements were given before the Court below to the effect that parties are living separately, although parties were living together under one roof.
3. I have heard learned counsel for the petitioner and perused the record.
4. Learned counsel for the petitioner has placed reliance on the judgment of learned Single Judge of Orissa High Court in the case of Smt. Puspalata Rout vs. Damodar Rout, C.R. No. 469 of 1984 decided on 15.5.1986 and argued that a mutual decree for divorce under Section 13-B of the Act can be recalled under Section 151 CPC. There is no doubt about the legal preposition that mutual decree for dissolution of marriage passed under Section 13-B of the Act can be recalled while invoking Section 151 CPC on proving that fraud was played while getting the decree for dissolution of marriage.
5. I am in full agreement with learned Single Judge of Orissa High Court that if petition under Section 13-B of the Act was itself not maintainable then decree for dissolution of marriage on a petition which itself was not maintainable can be recalled under Section 151 CPC.
Section 13-B of the Hindu Marriage Act reads as under:-
“13B. Divorce 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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act 1976 (68 of 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 months after 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 are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.”
To maintain the petition under Section 13-B of Hindu Marriage Act, three ingredients must be pleaded and proved which are as under:-
(a) Parties to the divorce petition have been living separately from one year or more.
(b) They have not been able to live
