Nisha vs Mahan and Others

Alok Singh, J.—Petitioner-wife has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India assailing the

order dated 24.8.2010 passed by Addl. District Judge, Rohtak thereby rejecting the application moved by the wife for recalling the divorce decree

dated 10.10.2006.

The brief facts inter alia are that marriage between the parties was solemnized on 15.1.2001 as per hindu rites and ceremonies. Both the parties

started living together and child namely Nancy was born out of this wedlock on 1.10.2002. Both the parties have filed joint petition u/s 13(B) of

Hindu Marriage Act before the Court below on 23.3.2006. Both the parties have signed the petition u/s 13B of the Act. After expiry of statuary

period of 6 months statements on oath of both the parties were recorded by the Court below on 25.5.2006. Both the parties have stated on oath

before the Court below that from 5.1.2005 parties are residing separately and despite of best efforts for re-conciliation made by family members,

relatives and the parties, re-conciliation is not possible, hence, they have amicably agreed for divorce by mutual consent. Ultimately divorce decree

was passed by the Court below on 10.10.2006. Petitioner-wife, thereafter, moved an application u/s 151 CPC for recalling the judgment dated

18.10.2006 on the ground that wrong averments were made in the petition u/s 13B of the Act and wrong statements were given before the Court

below to the effect that parties are living separately, although parties were living together under one roof.

I have heard learned Counsel for the Petitioner and perused the record.

Learned Counsel for the Petitioner has placed reliance on the judgment of learned Single Judge of Orissa High Court in the case of Smt.

Puspalata Rout v. Damodar Rout C.R. No. 469 of 1984 decided on 15.5.1986 and argued that a mutual decree for divorce u/s 13B of the Act

can be recalled u/s 151 Code of Civil Procedure. There is no doubt about the legal preposition that mutual decree for dissolution of marriage

passed u/s 13B of the Act can be recalled while invoking Section 151 CPC on proving that fraud was played while getting the decree for

dissolution of marriage.

I am in full agreement with learned Single Judge of Orissa High Court that if petition u/s 13B of the Act was itself not maintainable then decree

for dissolution of marriage on a petition which itself was not maintainable can be recalled u/s 151 Code of Civil Procedure.

Section 13B of the Hindu Marriage Act reads as under:

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 solemnized 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 utter making such inquiry as it thinks fit, that a marriage has been solemnized 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 decree.

To maintain the petition u/s 13B of Hindu Marriage Act. three ingredients must be pleaded and proved which are as under:

(a) Parties to the divorce petition have been living separately from one year or more.

(b) They have not been able to live together.

(c) That they have mutually agreed that the marriage should be dissolved.

If any of the ingredients of Section 13B is missing then Court would be within its jurisdiction in dismissing the petition u/s 13B of the Act. In the

present case in paragraphs No. 4 and 6 of the petition u/s 13B of the Act, following averments were made:

That after few months of the marriage, the relations between the Petitioners started deteriorating and consequently became strained, rough and

tough. During their stay together as husband and wife, they could not adjust with each other mentally and physically despite of their keen interest

and best efforts. Even the efforts of the respectable and brotherhood of both the sides to reconcile the parties proved futile but the Petitioners

could not pull on and in the end when despite keen desire and best efforts for the reconciliation of dispute, it was found that the Petitioners could

not live together as husband and wife and that it is very difficult to save this marriage. That both the Petitioners after the marriage resides together in

their matrimonial house from 15.1.2001 to 5.1.2005 and after that they started residing separately.

That the Petitioners lived together only up to 5.1.2005 and since 5.1.2005 they are living/residing separately and could not adjust with each

other mentally and physically despite of their keen interest and best efforts and could not pull on and the parties could not reconcile during this

period of separation and they have not resumed cohabitation since the date of their separation. As such all the efforts of reconciliation from both

the sides of the Petitioners have failed and now the marriage is irretrievably broken down and there is no possibility and probability of their living

together as husband and wife is in sight and they have therefore mutually agreed that the marriage between them should be dissolved. Therefore,

now both the parties had agreed to get the legal divorce by mutual consent from the Hon''ble Court.

From the perusal of the contents of paragraphs No. 4 and 6 of the petition u/s 13B of the Act, I am satisfied that all the three ingredients were

pleaded. Not only this in a statement on oath made by both the parties before the Court below contentions of paragraphs No. 4 and 6 of the

petition were repeated. In the facts and circumstances of the case, I am fully satisfied that requirement of Section 13B of the Act was duly pleaded

and proved, hence, Court was well within its jurisdiction while granting the decree for dissolution of marriage u/s 13B of the Act. Learned Counsel

for the Petitioner-wife vehemently argued that child namely Nancy was in illegal confinement of husband, hence, under the threat of husband, wife

has signed divorce petition and has made wrong statement on oath before the Court below, hence, decree obtained is out come of fraud and

coercion, hence, must be set aside. Admittedly, Petitioner has singed the divorce petition; Petitioner did not make any complaint during the

pendency of the divorce petition which was pending for almost 8 months. Moreover, Petitioner did not make any complaint to the Court while

appearing in a witness box about the illegal confinement of the minor child, hence, I am not inclined to accept contentions raised by learned

Counsel for the Petitioner. I do not find any reason or justification to disturb the view taken by the Court below.