Jasmeet Kaur vs Kulpreet Singh

Veena Birbal, J.—By way of this appeal u/s 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as `the Act''), appellant has challenged the order dated 23rd January, 2012 by which joint petition of the parties u/s 13B(1) of the Act has been dismissed. Background of the case is as under:-

The parties had filed a joint petition u/s 13B(1) of the Act being HMA 653/2011 before the learned ADJ, Tis Hazari Courts wherein they have stated that they were married to each other on 29th March, 2009 according to Hindu rites and ceremonies. Their marriage was consummated but no child was born from their wedlock. Subsequently due to temperamental differences, they could not live together and w.e.f. 5th April, 2010, they are living separately and they have mutually settled all their claims, the details of which are given in para 6 of the petition. It is stated that as they are unable to live together as husband and wife, they have decided to dissolve their marriage by decree of divorce by mutual consent. It is also stated that they had earlier filed a joint petition u/s 13B(1) of the Act i.e., HMA 529/2011. When the said petition was taken up, respondent/husband on being enquired by the Ld. Additional District Judge stated that he was not in proper state of mind and wanted to withdraw the consent. Accordingly, the learned Addl. District Judge vide order dated 4th November, 2011 had dismissed the said petition as there was absence of consent of one of the parties. It is further stated that now the respondent/husband has agreed for dissolution of marriage by decree of divorce by mutual consent and that his consent has not been obtained by pressure, force, fraud or under any influence, as such their marriage be dissolved by decree of divorce by mutual consent. The Ld. Additional District Judge dismissed the petition vide impugned order dated 23.1.2012 by holding that in view of the dismissal of the earlier petition i.e., HMA No.529/2011, the present was not maintainable.

Aggrieved with the said order, the present appeal is filed.

It may be noticed that in the petition filed u/s 13B(1) of the Act i.e., HMA 653/2011 which has been dismissed vide impugned order dated 23.1.2012, it is clearly stated by the parties that they are unable to live together as husband and wife and w.e.f. 5.4.2010, they are living separately. They have also stated that they have settled all their claims and they have decided to withdraw cases against each other details of which are given in para 6 of the petition. It is also categorically stated that after the dismissal of earlier petition i.e., HMA No.529/2011, the respondent/husband has again given consent for divorce by mutual consent and that the consent of the parties has not been obtained by pressure, fraud or force. Petition is jointly signed by both the parties. There is specific affidavits of the parties in this regard wherein parties have also stated about dismissal of earlier petition being HMA 529/2011 and have also given the reasons as to why respondent/husband had withdrawn the consent in the earlier petition. I have also spoken to the parties in the chamber. Parties have stated that they cannot live together as husband and wife and have decided to take divorce by way of mutual consent. The impugned order dated 23.1.2012 is also perused. The sequence of events is also considered. At the most, the earlier order dated 4.11.2011 by which the joint petition u/s 13B(1) was dismissed, amounts to withdrawal of consent by the respondent/husband, as such the same cannot come in the way of the parties in moving the fresh petition u/s 13B(1) of the Act being HMA 653/2011. Accordingly, the impugned order dated 23.1.2012 is set aside. The ld. trial court shall consider the matter afresh in accordance with law. It is clarified that the order dated 4.4.2011 will not come in the way of the ld.trial court in disposing of the petition being HMA 653/2011.

The appeal stands allowed.

Trial court record be sent back forthwith along with copy of this order. Partiesto appear before the concerned Ld.ADJ on 11th September, 2012.