C.R. No. 3943 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 3943 of 2009 Date of Decision: August 3, 2009 Paramjit Kaur …..Petitioner Vs. Gurmeet Singh …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. P.S. Ahluwalia, Advocate for the petitioner. -.- M.M.S. BEDI, J. (ORAL) Vide impugned order dated April 8, 2009, the Additional Civil Judge (Senior Division), Samana has dismissed the application under Section 13-B of the Hindu Marriage Act, (for short ‘the Act’), after the expiry of statutory 6 months period, in default, as one of the petitioners i.e. husband opted not to appear and made a statement through his counsel that he was not interested in getting his statement recorded under Section 13-B of the Act as he intended to file a petition under Section 9 of the Act. C.R. No. 3943 of 2009 [2] Counsel for the petitioner has argued that the case has been wrongly dismissed in default as both the parties will be deemed to be petitioners in petition under Section 13-B of the Act. He has also relied upon Smt. Sureshta Devi Vs. Om Parkash, AIR 1992 SC 1904, to contend that it is the positive requirement for the Court to pass a decree of divorce if the consent continues till the decree of divorce is passed. He contends that in the present case consent cannot be deemed to have been withdrawn. I have heard counsel for the petitioner and considered his contentions. Though the petition has been wrongly dismissed in default for non-appearance of Gurmeet Singh but even otherwise the petition deserves dismissal as the consent of one of the spouses did not continue till the petition under Section 13-B of the Act culminated in the decree of divorce after recording of the second statement on expiry of statutory period. I am of the opinion that in case one of the parties opts at a later stage before the grant of decree of divorce, not to appear, it will tentamount to implied withdrawal of the consent. Counsel for the petitioner has also placed reliance on the judgment of Smruti Pahariya Vs. Sanjay Pahariya, 2009 (2) RCR (Civil) 943. In the said case a petition for divorce by mutual consent was filed. The wife appeared after expiry of period of six months but the husband did not turn up as a result of which the decree of divorce was granted under Section 13-B of the Act but it was set aside by the High Court. The Apex Court ordered that the decree of divorce had been passed without ascertaining the consent of the husband, Court cannot presume consent by C.R. No. 3943 of 2009 [3] mere absence of husband. In that case the Apex Court had given a direction to ascertain the consent of the parties and then to pass a decree. I have considered the ratio of the said judgment. In the present case, counsel for the husband had specifically informed the Court under the authority given to him that the husband wanted to resume cohabitation by filing a petition for restitution of conjugal rights as such it will not be necessary in the present case to re-ascertain the consent of the husband. The judgment of Smruti Paharia’s case (supra) is thus not applicable. Dismissed. Dismissal of the application under Section 13-B of the Act, however, will not debar the parties to file a fresh petition. The wife- petitioner can avail other alternative remedies available to her in accordance with law. August 3, 2009 (M.M.S.BEDI) sanjay JUDGE