F.A.O. No.M -61 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No.M -61 of 2008 Date of decision: 05.03.2009. Smt. Surbhi ...Appellant Versus Sandeep Aggarwal ...Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Chetan Mittal, Senior Advocate with Mr. Kapil Aggarwal, Advocate for the appellant. Mr. C.B.Goel, Advocate with Mr. Nitin Jain, Advocate for the respondent ***** S.D.ANAND, J. For enabling appreciation of controversy, it would be appropriate to detail the attending circumstances in the first instance. The appellant-wife and respondent-husband filed a petition under Section 13-B of the Hindu Marriage Act (hereinafter referred to as “the Act”) in the Court of learned District Judge, Yamuna Nagar on 24.7.2007. They also made a statement, supportive of the averments made in the course thereof, at the time of first motion. The matter was adjourned to 28.1.2008 for being taken up at the second motion. On that date, the appellant-wife averred that she was not in a position to make a statement on account of her indisposition. She sought adjournment. The Court F.A.O. No.M -61 of 2008 -2- **** observed, in the course of the order dated 28.1.2008, itself that she was unable to make a statement and adjourned the case to 14.2.2008 for recording the statements of the parties on second motion. However, on that very day i.e. 28.1.2008 itself, the parties re-appeared before the Court and volunteered to make a statement which came to be recorded by the learned District Judge, who however, ordered that “the case shall be decided on the date fixed i.e. 14.2.2008 as already ordered.” On 7.2.2008, however, the appellant-wife filed an application requesting the Court to allow her to withdraw her statement because she had been coerced into for making the statement in support of the petition. There also was an averment in the course of the petition that, as per the terms of Panchayat settlement effected on 16.7.2007 itself, a sum of Rs.25 lacs was agreed to be paid to her which had been incorrectly indicated in the course of the petition under Section 13-B of the Act as Rs.8 lacs and the petition also did not make a mention of the panchayati compromise arrived at between the parties on 16.7.2007. The application was resisted by the respondent-husband who averred that statement made by the appellant-wife before the Court was voluntarily in character and no undue influence had been exerted upon her to make it. The learned District Judge held an enquiry into the matter and recorded a finding that the appellant-wife had actually made her statement voluntarily and that she could not allow to resile therefrom. On that finding, the petition under Section F.A.O. No.M -61 of 2008 -3- **** 13-B of the Act was allowed and the marriage between the parties was ordered to be dissolved with effect from the date of the orders of the Court. The appellant-wife is in revision against the impugned order dated 14.2.2008 on the premise that she having validly withdrawn her consent before a decree on the basis thereof came to be passed, the learned District Judge could not have granted the impugned decree. I have heard Mr. Chetan Mittal, learned Senior Counsel assisted by Mr. Kapil Aggarwal, learned counsel appearing on behalf of the appellant and Mr. C.B.Goel, learned counsel appearing on behalf of the respondent and have carefully gone through the record. Mr. Chetan Mittal, learned Senior Counsel appearing on behalf of the appellant, argued that the withdrawal of the consent of the indicated category is permissible any time before the petition is finally disposed of. Reliance, in support of the advocate – view, is placed upon Smt. Sureshta Devi Vs. Om Parkash AIR 1992 Supreme Court 1904 and Harcharan Kaur Vs. Nachhattar Singh AIR 1988 Punjab and Haryana 27. Mr. C.B. Goel, learned counsel appearing on behalf of the respondent-husband, resisted the plea by arguing that the appellant-wife having voluntarily made a statement at the time of second motion could not be allowed to resile therefrom. In support of that point of view, it was argued that it is only the making a statement at the second motion which is conceived by Section 13-B of the Act F.A.O. No.M -61 of 2008 -4- **** and any withdrawal of consent after six months are over is not conceptualised by the Act. No law otherwise, in support of the view, cited by the learned counsel for the respondent-husband. In Harcharan Kaur's case (supra) a Division Bench of this Court recorded the following categorical view which does not, at all, admit of any ambiguity:- “In our view, unless the parties to the petition under X.13- B of the Act, who have mutually consented to have the marriage dissolved, continued to signify their mutual consent for the dissolution of the marriage right up to the date of the decree, the marriage cannot be dissolved under Sub-Sec. (2) of S. 13-B of the Act merely on the basis of that six months earlier the parties had together presented the petition for dissolution of marriage by mutual consent. Either of the parties to the petitioner under S. 13-B, that is, husband or wife, is at liberty to revoke its consent any time before the petition is finally disposed of; and if the other party is still keen to have the marriage dissolved, the other provisions of the Hindu Marriage Act are still available for the grant of necessary relief if a case is made out for the same. The object of S.13-B is to provide an additional speedy remedy to the husband and the wife to have the marriage dissolved if even after sufficient efflux of time both of them find, that it is not possible for them to continue as husband and wife F.A.O. No.M -61 of 2008 -5- **** any further. Obviously, if both the parties agree, the decree of divorce can be granted by mutual consent under S.13-B and if one of them fails to agree and does not want to oblige the other party by extending the requisite consent to the divorce, decree of divorce cannot be passed under S. 13- B of the Act. For that, other provisions of the Act would have to be resorted to.” Likewise, the Apex Court in Smt. Sureshta Devi's case (supra) held as under:- “A party to a petition for divorce by mutual consent under S. 13-B of the Hindu Marriage Act, 1955 (Act) can unilaterally withdraw the consent and the consent once given is not irrevocable. S. 13-B is in pari materia with S.28 of the Special Marriage Act, 1954.” In view of the above exposition of law, it is apparent that the appellant-wife was competent to withdraw her consent at any time before the grant of impugned decree. Though there can be no dispute with the proposition that learned District Judge could have held an enquiry into the matter in view of the law laid down by the Apex Court in Smt. Sureshta Devi's case (supra), it requires pertinent notice that the affidavits furnished and the statements made in the course of enquiry (held by the learned District Judge) cannot be said to be substantive in character inasmuch as there is no indication that opportunity of cross- F.A.O. No.M -61 of 2008 -6- **** examination had been afforded to the opposite party. By the very nature of things, such like statements, the validity whereof is not allowed to be tested on the touchstone of cross-examination, cannot be made the foundational premise of any finding. The manner in which the learned District Judge conducted the enquiry was, thus, not in accord with the law. In the light of the fore-going discussion, the appeal shall stand allowed. The impugned judgment and decree dated 14.2.2008 shall stand set aside. The petition under Section 13-B of the Act filed by the respondent-husband shall stand dismissed. March 05, 2009 (S.D.Anand) Pka Judge