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A.F.R.

Court No. - 4

Case :- FIRST APPEAL No. - 355 of 2017

Appellant :- Smt. Poonam

Respondent :- Rajiv Bariyani

Counsel for Appellant :- Santosh Kumar Srivastava

Counsel for Respondent :- Harindra Prasad

Hon'ble Bala Krishna Narayana,J.

Hon'ble Shamim Ahmed,J.

Heard learned counsel for the appellant and Sri Harindra Prasad,

learned counsel for the sole respondent.

This first appeal has been filed by the appellant Smt. Poonam

against the judgement and order dated 28.1.2017 passed by Family Court,

Gorakhpur, by which Case No. 458 of 2014 (Rajiv Bariyani vs. Smt.

Poonam) under Section 13-B of Hindu Marriage Act, 1955 (hereinafter

referred to as the "Act"), has been dismissed on the ground that the

respondent Rajiv Bariyani has withdrawn his consent.

It is contended by learned counsel for the appellant that since the

parties have been living separately for the past seven years and the

respondent, after giving his consent to divorce by mutual consent, had

withdrawn the same after two and a half years, the Family Judge was not

at all legally justified in dismissing the Case No. 458 of 2014 (Rajiv

Bariyani vs. Smt. Poonam).

Per contra, Sri Harindra Prasad, learned counsel for the sole

respondent by placing reliance upon a judgement rendered by the Apex

Court in Smt. Sureshta Devi vs. Om Prakash reported in 1991

2 SCC 25 submitted that consent can be withdrawn by one of the parties

any time before the Court passes a decree of divorce by mutual consent.

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We have heard learned counsel for the parties.

Since the facts of this case are not in dispute, with the consent of

the learned counsel for the parties, we are deciding this appeal finally at

the admission stage itself as per the High Court Rules.

In order to appreciate the submissions made by learned counsel for

the parties, it would be useful to extract Section 13-B of the Act.

Section 13B in The Hindu Marriage Act, 1955

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 solemnised 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

solemnised 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 the decree.]

Even the most superficial reading of sub-section (1) Section 13-B

of the Act indicates that subject to the provisions of the 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, 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.

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Sub-section (2) of Section 13-B of the Act further stipulates that 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 18 months after the said date and 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