The importance of mutual consent and the statutory cooling off period under Section 13-B of the Hindu Marriage Act, 1955 in dissolution of marriage by mutual consent.

GURVINDER SINGH GILL J.

1. The appellant-husband has filed this appeal challenging judgment and decree dated 19.12.2017 vide which a petition filed by him and his wife (respondent) under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”) seeking dissolution of their marriage by way of mutual consent has been dismissed by learned Additional Civil Judge (Senior Division) Garhshankar (exercising the powers of District Judge at Garhshankar).

2. The appellant-husband in the joint petition under Section 13-B of the Act averred that his marriage with respondent-wife was solemnized on 24.12.2015 as per Sikh rites and ceremonies but no issue was born out of the wedlock. It is averred therein that the relation between the parties never remained cordial and they withdrew from each-other’s company on 8.1.2016 and have been residing separately ever since then and that ultimately with the intervention of the parents and relatives they had agreed to dissolve their marriage by mutual consent and consequently filed a petition under Section 13-B of the Act.

3. Upon presentation of the petition under Section 13-B of the Act, statements of both the parties were recorded on the first motion by the learned lower Court on 15.2.2017. The respondent-wife, Lovepreet Kaur stated that due to temperamental differences they could not stay together and a compromise had been effected as per which, she was to pay an amount of Rs.5 lacs to her husband and her husband was to return her passport which he had kept in his custody. The appellant-husband also stated identically.

4. After recording aforesaid statements, the matter was adjourned to 16.8.2017 for recording statements on the second motion. However, on 16.8.2017 none of the parties appeared before the Court and the matter was adjourned to 28.8.2017 and then to 12.10.2017. Even thereafter on 10.11.2017 and on 27.11.2017 none of them appeared. The counsel for the respondent-wife, Lovepreet Kaur, informed the Court that ever since 15.2.2017, when statements of parties were recorded on the first motion, Lovepreet Kaur neither issued any instructions to him nor came to the Court. The appellant husband, however, got his statement recorded reiterating his earlier statement. He further stated that as per the statements recorded on the first motion, he had received an amount of Rs.5 lacs from the respondent-wife and that there had been no cohabitation between them ever since recording of statements on the first motion.

5. Since, the respondent-wife did not appear before the lower Court for getting her statement recorded on the second motion, the learned lower Court dismissed the petition holding therein that it could not be concluded that the respondent-wife was still consenting for dissolution of her marriage. The appellant-husband, aggrieved with dismissal of the petition under Section 13-B of the Act, filed the present appeal.

6. The learned counsel for the appellant-husband while assailing the impugned judgment and decree has submitted that it is not a case where the respondent wife had ever withdrawn her consent for divorce by mutual consent and that her absence for recording her statement on second motion cannot be interpreted to mean that she had withdrawn her consent especially when she had already performed her part of the terms of the compromise i.e of transferring an amount of Rs.5 lacs to the appellant-husband. The learned counsel in order to hammer forth his aforesaid submissions cited 2004(1) R.C.R.(Civil) 621 (Rajasthan), Suman Versus Surendra Kumar.

7. We have considered the aforesaid submissions raised before this Court and have also gone through the judgment relied upon by the learned counsel. It is apposite to refer to the provisions of Section 13-B of the Act, which read as follows:-

“13-B 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