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Judgment
A.P. Lavande, J.—Heard Ms. Mesquita, learned Counsel for the Petitioner and Ms. P. Adpaikar, learned Counsel for Respondent No. 1.
Leave to delete Respondent No. 2. Amendment to the cause title of the petition to be carried out forthwith.
Rule. By consent of the learned Counsel for the parties heard forthwith.
By this petition under Article 227 of Constitution of India, the Petitioner challenges the order dated 9th July, 2010 passed by the Civil Judge, Senior Division, Vasco-da-Gama in Matrimonial Petition No. 11/2008/A by which an application filed by the Petitioner to recall the order dated 3rd July, 2010 has been dismissed.
Briefly, the facts relevant for disposal of the present writ petition are as under:
The Petitioner filed matrimonial petition seeking divorce against the Respondents on the ground of cruelty u/s 13(1)(ia) of the Hindu Marriage Act, 1955 (''the Act'' for short). During the pendency of the said petition, both the parties filed an application dated 23rd June, 2009 seeking leave of the Court to treat the said petition as petition for dissolution of their marriage by mutual consent in terms of Section 13B of the Act. The said application was rejected by the learned Civil Judge, Senior Division, Vasco-da-Gama by order dated 3rd October, 2009. By order dated 5th December, 2009 an application for review of the said order also was rejected.
The Petitioner challenged both these orders by filing Writ Petition No. 868/2009 before this Court. This Court allowed the petition and set aside and impugned orders and granted the application dated 23rd June, 2009 of the Petitioner/ Plaintiff and directed the Civil Judge, Senior Division to proceed in accordance with law on the basis of the said application.
Thereafter, the parties appeared before the learned trial Judge and requested the trial Court to pass a decree in terms of Section 13B of the said Act. On 3rd July, 2010 since neither parties were present, the learned trial Judge adjourned the petition to 3rd January, 2011 i.e. after the period of 6 months from the date of presentation of the application in the Court. On the same day, an application was filed on behalf of the Plaintiff to recall the order and for fixing the date for passing the decree of divorce.
The said application was dismissed by an order dated 9th July, 2010.
By the impugned order, the learned trial Judge has held that since amendment was carried out on 3rd May, 2010 and the copy was served on 16th June, 2010, the trial Court was justified in fixing the matter after a period of 6 months and consequently, refused to recall the order fixing the matter on 3rd January, 2011.
The learned Counsel appearing for the Petitioner submitted that since consent terms were filed on 5th November, 2009 and this Court by order dated 20th April, 2010 had allowed the application for amendment by setting aside the order passed by the trial Court, the learned trial Judge was not justified in holding that the parties had to wait for a period of six months from 3rd May, 2010. Placing reliance upon the judgment of this Court in the case of Smt. Urmila Varma Vs. Shankar Richhpal Varma, , learned Counsel submitted that the ratio of the said judgment is squarely applicable in the present case and considering the peculiar circumstances and with a view that both the parties may be able to settle the dispute, it would be appropriate to direct the trial Court to pass a decree in terms of the consent terms filed u/s 13B of the Act.
Learned Counsel for the Respondent No. 1 also supported the submissions made on behalf of the Petitioner.
Having considered the submissions made on behalf of the Petitioner, I am of the considered opinion that in the interest of justice, the impugned order dated 9th July, 2010 deserves to be quashed and set aside. In the present case, the consent terms were filed on 5th November, 2009 before the trial Court. This Court by order dated 20th April, 2010 set aside the order passed by the trial Court refusing to accept the consent terms after placing reliance upon the judgment in the case of Urmila Varma (supra). In the case of Urmila Varma (supra), the learned single Judge of this Court, after considering the peculiar facts of the case, held that amendment made to the pending petition would relate back to the date of presentation of the petition filed by the Respondent therein. I am inclined to take the same view, more particularly having regard to the fact that the consent terms were filed on 5th November, 2009 by the parties and Writ Petition No. 868/2009 was allowed on 20th April, 2010.
In view of the above discussion, the impugned order dated 9th July, 2010 is quashed and set aside. The learned trial Judge to pass appropriate decree in terms of consent terms filed, expeditiously. Parties either personally or through their Advocates to appear before the trial Court on 23rd December, 2010 at 10.00 a.m.
Writ Petition stands disposed of. No order as to costs.