JUDGMENT :

Heard Sri Rajeev Kumar Saxena, holding brief of Sri Vinod Kumar Yadav, learned counsel for the appellant-husband.

1. This appeal under Section 19 of the Family Courts Act, 1984 has been filed praying to set aside the judgment and order dated 27.7.2022 in Case No.597 of 2021 (Kanhaiya Kanaujiya vs. Tara Devi), under Section 13-B of Hindu Marriage Act, passed by the Additional Principal Judge, Family Court No.3, Varanasi, whereby the Application (9C) dated 10.5.2022, filed by the appellant-husband and the divorce petition filed on 22.3.2021, have been dismissed.

2. Briefly stated facts of the present case are that the appellant-husband has allegedly filed a joint petition with the defendant-respondent, under Section 13-B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the “Act, 1955”) on 22.3.2021 which was registered as Case No.597 of 2021. The defendant-wife never appeared in the aforesaid case. Subsequently, on 10.5.2022, appellant-husband filed an application (9C). In paragraph no. 7 of the affidavit, accompanying the appeal, the appellant has stated as under:-

“The appellant has filed an application (9C) dated 10.5.2022 in which he has stated that both the parties entered into compromise/settlement for dissolution of marriage with the consent. The true copy of the notary affidavit prepared by the appellant and opposite party no. 2 dated 22.3.2021 is being filed herewith and marked as Annexure No.2 to this affidavit.”

3. Perusal of Annexure-2 to the aforesaid affidavit shows that it is a notarized compromise dated 19/22.3.2021, allegedly entered by the appellant and the respondent herein. The application (9C) has not been filed. As per own admitted case of the appellant, he alone has filed an application (9C). Thus, the application (9C) cannot be presumed to be a second motion jointly by the parties as per provisions of Section 13-B (2) of the Act, 1955. Under the circumstances, dismissal of the application (9C) and the petition under Section 13-B of the Act, 1955 by the impugned judgment and order dated 27.7.2022, cannot be said to suffer from any illegality.

4. In the case of Smt. Sureshta Devi vs. Om Prakash, 1991(2) SCC 25, (Paras 9, 10 & 11) the Hon’ble Supreme Court considered the question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent, and held, as under:-

“9. The 'living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression 'living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they 'have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.

10. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose o