'J 3# o/o L4.O7.2010 Present:- Mr. Shaad Anwarforthe appellant. + MAT APP No. 47l2O1O t< By this appeal filed under Section 28 of the Hindu Marriage Act, the appellant seeks to challenge the order dated 2.2.2010 passed by the learned Additional DistrictJudge. Heard. . Brief facts of the case taken out from the present appeal are that the marriage between the parties was solemnized on 22.2.2002 as per Hindu Rites and Ceremonies. Due to certain temperamental differences the parties could not stay together and they started living separately since March 2OO7, With the intervention of some respectable persons and relatives of both the parties the parties decided to seek divorce by way of mutual consent. Accordingly, the parties moved a petition under Section L3-B (l) of the Hindu Marriage Act and vide order dated l-7.10.2008 the first motion was granted by the learned ADJ after the pafties had appeared before the Court and gave their joint statements. After the expiry of statutory period of six months the appellant moved .":qr 4a Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified second motion but the respondent failed to join in the second motion and in fact retracted from the second motion. The amount of Rs.1,50,000/- was paid by the appellant to the respondent wife towards the maintenance of the minor child at the time of grant of first motion. Since the respondent failed to join the appellant in the second motion, therefore, vide order dated 2.2.2010 the learned ADJ rejected the said petition of the appellant on the ground of the same being not maintainable. The learned ADJ relied on the order of the Hon'bfe Supreme Court in the case of Smruti Pahariya Vs, Sanjay Pahariya in C,A, No. 3465/2009, where the Hon'ble supreme court took a view that in the absence of one of the parties, the court cannot presume the consent of such party. lt was also obserued that it was the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13 B of the Act. I do not find any infirmity or perversity in the impugned order. Clearly the respondent wife failed to join the appellant in the second motion, therefore, she appeared to have withdrawn her consent. No doubt, it was expected of the respondent to have joined the second motion, but since there is a statutory requirement that both the parties should join the second motion petition, therefore, in the absence of the respondent wife the court could --] a ir A v not have entertained the second motion petition filed by the appellant under Section L3 B (2). There is no merit in the petition and the same is hereby dismissed. However, liberty is granted to the appellant to seek appropriate remedy as available to him under law. n tl IA t>l^''-- KAIUYH GAMBH|R, J JULY L4,?OLO mg ,+ a