HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 123 of 2009 Smt. Sunita Singh. ...Appellant/respondent Versus Hayat Singh S/o Dan Singh. ...Respondent Mr. Arvind Vashishtha, Advocate present for the appellant/wife, Mr. Ram Ji Srivastava, Advocate present for the respondent/husband. Dated September 25, 2009 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) Heard. 2. Present appeal is directed against the judgment and order dated 28.08.2009 passed by the Judge Family Court, Udham Singh Nagar in divorce petition no. 252 of 2008 whereby the petition moved under Section 13B of the Hindu Marriage Act, 1955 has been dismissed. 3. Learned counsel for the appellant argued that the petition filed under Section 13B of the Hindu Marriage Act, 1955 cannot be dismissed on the ground that parties were in collusion. 4. The appeal is admitted. 5. Notices on behalf of respondent- Hayat Singh are accepted by Mr. Ram Ji Srivastava, Advocate. 6. On the request of learned counsel for the parties this appeal is heard finally today as copies of the plaint and other documents are filed with the supplementary affidavit. 7. Brief facts of the case are that the appellant Smt. Sunita Singh got married to respondent Hayat Singh on 12th May 1998 at Chakarpur, Tehsil-Khatima, District- 2 Udham Singh Nagar. Out of the wedlock two children were born, namely, Simran and Shahil. However, since the respondent (husband) used to serve in the Army, the wife most of the time used to live in her parental house. It is pleaded in the joint petition filed by the parties to the matrimony that due to the disagreement and differences between them, after some time, it became difficult for them to live together. Finally, in the year 2008 they decided to get divorced. They moved a petition before the Trial Court for decree of divorce. 8. Impugned order shows that the petition for divorce was taken up for hearing in the year 2009. Though the parties insisted that they want to get divorced, the Trial Court dismissed the petition on the ground that the parties are in collusion. 9. Learned counsel for the parties pleaded that there cannot be a joint petition for divorce, until and unless the parties agree to get divorced, as such, the Trial Court has committed grave error of law in dismissing the petition moved under Section 13B of the Hindu Marriage Act, 1955 on the ground that they were in collusion. Section 13B of the Act provides that 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 and that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. 10. Nature of the Section itself shows that this is an exception to Section 20 of the Act which requires that every petition presented under the Act shall state distinctly that the parties are not in collusion. Section-20 of the Act, which provides exception to a petition moved 3 under Section 11 of the Act, was in the statute right from the date the Hindu Marriage Act, 1955 came into force. But the Section 13B of the Act was incorporated in the statute vide Act No. 68 of 1976, as such, there was no occasion on the part of the Legislature to make Section 13B an exception in Section 20 of the Act. But the two provisions are required to be given purposeful meaning with the harmonious construction. That being so, we are of the view that apart from a petition moved under Section 11 of the Act, petition under Section 13B of the Hindu Marriage Act, 1955 is also an exception to Section 20 of the Act and once the ingredients of Section 13B are made out the petition under Section 13B of the Act cannot be dismissed on the ground that the parties are in collusion. Unless the parties are mutually agreed, they cannot move a petition under Section 13B of the Act. 11. For the reasons as discussed above, this appeal deserves to be allowed. 12. The appeal is allowed. The impugned judgment and decree dated 28.08.2009 passed by the Judge Family Court, Udham Singh Nagar in Divorce Petition no. 252 of 2008, is hereby set-aside. The petition for divorce moved under Section 13B of the Hindu Marriage Act, 1955 is allowed. Marriage between the parties stands dissolved. (V.K. Bist, J.) (Prafulla C. Pant, J.) 25.09.2009 NCM: