Civil Revision No. 3741 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3741 of 2010 (O&M) Date of decision: 09.07.2010 Deepak Agarwal ....Petitioner Versus Swati ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Amar Vivek, Advocate, for the petitioner. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the judgment dated 24.4.2010, passed by the learned District Judge, Ludhiana, vide which the petition filed by the petitioner under Section 13-B of the Hindu Marriage Act, for dissolution of marriage by decree of divorce by mutual consent, stands dismissed, as petitioner No.1/respondent-wife made an application withdrawing her consent to the grant of divorce by mutual consent. The application moved by petitioner No.1/respondent reads as under: - “1. That the above noted petition is pending in this Hon'ble Court and is fixed for today for recording the final statement in this petition. 2. That the petitioner no.1/applicant filed this petition for the dissolution of the marriage by way of mutual consent and got recorded her first statement in this Hon'ble Court to this effect. 3. That now the petitioner No.1/applicant does not Civil Revision No. 3741 of 2010 (O&M) -2- want to dissolve the marriage by way of mutual consent. 4. That today the petition is pending for recording the final statement and the consent can be withdrawn at any stage before passing the decree under Section 13-B of Hindu Marriage Act. Accordingly, today the petitioner no.1/applicant is withdrawing her consent in the present petition. It is, therefore, respectfully prayed that the petition under Section 13-B of HMA may kindly be dismissed as the consent has been withdrawn by the applicant.” Learned counsel for the petitioner challenged the order passed by the learned District Judge, dismissing the petition under Section 13-B of the Hindu Marriage Act, by contending that the parties entered into a compromise vide Annexure P-1 on 23.10.2009. Agreeing therein to dissolve their marriage by mutual consent after settlement of the maintenance payable, including permanent alimony, which was assessed as Rs.2.25 lac. It was further agreed that the personal belongings of the wife would be returned to her. It was the case of the petitioner that out of the settled amount, a sum of Rs.75,000/- (Rupees seventy five thousand only) was paid. The petitioner also relied on the affidavit executed by petitioner No.1/respondent, to contend that in view of the settlement, it was not permissible for wife to withdraw her consent and even otherwise the learned Court was required to hold an inquiry to see if divorce can be granted in absence of counsel. In support of the contention, the learned counsel for the petitioner placed reliance on the judgment of this Court in Prem Lata Civil Revision No. 3741 of 2010 (O&M) -3- Vs. Ashok Kumar, 2010(2) RCR (Civil) 464, wherein this Court while deciding the appeal filed against dismissal of petition under Section 13- B of the Hindu Marriage Act, on withdrawal of the consent, observed as under: - “11. If the authoritative consistent enunciation of law by Hon'ble the Supreme Court is considered in the light of the facts of the present case, the inescapable conclusion is that the learned court below has committed patent irregularity in the matter of grant of divorce by way of mutual consent, when as per the material on record, continuing consent was not available, which is sine die non for passing a decree of divorce under Section 13-B of the Act, as only one of the parties had appeared on the date the petition was fixed after expiry of statutory period of six months after recording their initial statements at the time of presentation of the petition. It is not a case where the settlement between the parties has been given effect to before filing of petition for divorce by mutual consent in other proceedings pending in court or amount of permanent alimony has been paid or custody of children settled, wherein on the basis of material on record and making such inquiry the court may pass such order as it deems fit. Nothing of the sort has been pointed out in the present case.” The contention raised by the learned counsel for the petitioner, deserves to be rejected, in view of the law laid down by the Hon'ble Supreme Court in Smruti Pahariya Vs. Sanjay Pahariya, 2009(2) RCR (Civil)943, wherein the Hon'ble Supreme Court overruled the judgment passed by the Hon'ble Bombay High Court and the Hon'ble Delhi High Court, wherein a view as contended was taken, that the Court was Civil Revision No. 3741 of 2010 (O&M) -4- competent to pass a decree even if one party withdraws the consent. The Hon'ble Supreme Court while interpreting Section 13-B of the Hindu Marriage Act laid down as under: - “35. In paragraphs 13 and 14 of the Sureshta Devi (supra), the learned Judges gave an interpretation to Section 13B (2) and in doing so the learned Judges made it clear that the reasons given by the High Court of Bombay and Delhi are untenable inasmuch as both the High Courts held that once the consent is given by the parties at the time of filing the petition, it is impossible for them to withdraw the same to nullify the petition. 36. We also find that the interpretation given by Delhi and Bombay High Courts is contrary to the very wording of Section 13B (2) which recognizes the possibility of withdrawing the petition filed on consent during the time when such petition has to be kept pending. 49. We are of the view that it is only on the continued mutual consent of the parties that decree for divorce under Section 13B of the said Act can be passed by the Court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the Court grants the decree, the Court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the Court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its facts situation, discussed above. 50. In our view it is only the mutual consent of the parties which gives the Court the jurisdiction to pass a decree for divorce under Section 13B. So in cases under Section 13B, mutual consent of the parties is a Civil Revision No. 3741 of 2010 (O&M) -5- jurisdictional fact. The Court while passing its decree under Section 13B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. In the facts of the case, the impugned decree was passed within about three weeks from the expiry of the mandatory period of six months without actually ascertaining the consent of the husband, the respondent herein.” In view of the judgment of the Hon'ble Supreme Court reproduced above, on withdrawal of consent, it is not possible for the Court to proceed further with petition under Section 13-B of the Hindu Marriage Act. The contention of the learned counsel for the petitioner cannot be accepted that the learned Court was to hold further inquiry, as no ground except the ground of mutual consent was pleaded in the joint petition filed under Section 13-B of the Hindu Marriage Act, therefore, there was nothing to hold any further inquiry, once the consent by the wife was withdrawn in writing. The learned counsel for the petitioner misread the judgment of this Court in Prem Lata Vs. Ashok Kumar (supra) to contend that further enquiry is to be held to grant divorce by treating it to be a petition other than the one filed under Section 13-B of the Hindu Marriage Act. This Court cannot take a view different than the one taken by Hon'ble Supreme Court. The judgment relied on by the petitioner also does not lay down that further enquiry is required. The observation by this Court to deal with contention cannot be said to be a Civil Revision No. 3741 of 2010 (O&M) -6- binding precedent. The observations are thus per incurium and not binding. No merit. Dismissed. (Vinod K. Sharma) Judge July 09, 2010 R.S.