Sarvajeet Singh vs Kuljeet Kaur

The instant appeal is filed by appellant-husband to challenge judgment and decree dated 03.04.2018, passed by Additional District Judge, Srikaranpur, District Sriganganagar (for short, 'learned trial Court') accepting the application of both the parties for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 (for short, 'Act'). The learned trial Court, by the impugned judgment and decree annulled marriage of the spouses and awarded a lumpsum amount of permanent alimony and maintenance to respondent-wife to the tune of Rs.4,00,000. The appellant-husband was directed to pay the aforesaid amount within two months.

Succinctly stated, the facts of the case are that appellant and respondent tied their nuptial knot on 04.12.2006 as per Hindu-Sikh religion in Village 44 G.G., Srikaranpur, District Sriganganagar. After marriage, out of the wedlock, a daughter Navpreet Kaur was born on 14.01.2009. The matrimony continued streamlined for quite some time but thereafter some acrimony cropped-up between the parties. The misunderstanding between the spouses reached to its optimum level leading to lauching of criminal case at the behest of respondent-wife and finally both of them decided to call it a day by way of ending matrimony. In order to abate their misery perpetually, the spouses agreed to seek divorce by mutual consent and consequently a joint petition under Section 13-B of the Act was filed by them before the learned trial Court. Although, both the spouses were present at the time of presentation of the petition for divorce by mutual consent and first motion hearing but subsequently on second motion of hearing after six months, nothing turned out of the litigation, nor during the gestation period of six months consent was withdrawn by either of the parties. The proceedings of the petition for mutual divorce continued for yet another approximately four years and during interregnum learned trial Court made sincere endeavor to call the parties for reconciliation but all its efforts went in vain due to absence of the appellant. It is also noteworthy that after presentation of the petition for mutual divorce, both the spouses started living separately and virtually matrimonial relations reached to its vanishing point. At this stage, it would also be significant to notice here that when both the spouses agreed to dissolve the marriage by mutual consent by entering into compromise, in terms of the compromise, the prosecution launched at the behest of wife against appellant-husband for offence under Sections 498A and 406 IPC was also settled and the offences were compounded resulting in acquittal of the appellant.

Be that as it may, for the reasons best known to appellant, he did not attend second motion hearing, and therefore, learned trial Court, in absence of withdrawal of his consent, presumed his consent and passed the decree for divorce by mutual consent. While passing the decree, learned trial Court has placed reliance on Division Bench Judgment of Bombay High Court in case of Prakash Alumal Kalandari Vs. Mrs. Jahnavi Prakash Kalandari [AIR 2011 Bombay 119].

I have heard learned counsel for the parties and perused the impugned judgment and decree.

Upon consideration of the matter in light of the provision under Section 13-B of the Act, in my considered opinion, mere non-appearance of either of the spouses on second motion hearing, cannot be an impediment, much less legal impediment for passing a decree of divorce by mutual consent. The same view is also endorsed by the Division Bench of Bombay High Court in Prakash Alumal Kalandari's case (supra). This Court, in case of Sweta Vs. Dinesh Khetani [2016 (4) RLW 3389 Raj.] has also examined a case for dissolution of marriage under Section 13-B of the Act in identical facts and circumstances of the case. The Court, while taking into account the factum of non-withdrawal of consent by one of the spouses (husband) and his continuous absence during second motion hearing, found the order of Family Court rejecting the petition as laconic. The Court held:

"7. Therefore, viewed from any angle, in the backdrop of peculiar facts and circumstances of the instant case and law laid down by this Court in Smt. Suman (supra), the impugned order passed by the Family Court cannot be sustained.

Resultantly, instant petition is allowed. The impugned order dated 9.10.2015 (Annex.8) passed by the Family Court is hereby quashed and set aside and the matter is remanded back to the Family Court for passing appropriate decree/order for dissolution of marriage by mutual consent following the verdict of Division Bench of this Court in Smt. Suman (supra). The petitioner may appear before the Family Court on 25.5.2016 and the Family Court is further directed to conclude the proceedings as expeditiously as possible preferably within a period of two months thereafter. Let record of the case be remitted back to the Family Court No.1, Jodhpur forthwith."

In view of foregoing discussion, I am unable to find any error much less manifest error in the impugned judgment and decree passed by learned trial Court warranting interference in exercise of appellate jurisdiction.

Consequently, the appeal fails and same is hereby rejected.