Anil Kumar Jain vs Maya Jain

3. In the instant case, the appellant husband was married to the respondent wife on 22nd June, 1985, according to Hindu rites. On account of differences between them, they took a decision to obtain a decree of mutual divorce, which resulted in the filing of a joint petition for divorce under Section 13-B of the Hindu Marriage Act, 1955, (hereinafter referred to as `the Act') on 4th September, 2004, in the District Court at Chhindwara. The same was registered as Civil Suit No.167-A of 2004. As required under the provisions of Section 13-B of the aforesaid Act, the learned Second Additional District Judge, Chhindwara, fixed the date for consideration of the petition after six months so as to give the parties time to reconsider their decision. On 7th March, 2005, after the expiry of six months, the learned Second Additional District Judge, Chhindwara, took up the matter in the presence of both the parties who were present in the Court. While the appellant husband reiterated his earlier stand that a decree of mutual divorce should be passed on account of the fact that it was not possible for the parties to live together, on behalf of the respondent wife it was submitted that despite serious differences which had arisen between them, she did not want the marriage ties to be dissolved. On account of withdrawal of consent by the respondent wife, the learned Judge dismissed the joint petition under Section 13-B of the Act.

4. Aggrieved by the order dated 17th March, 2005, passed by the learned Second Additional District Judge, Chhindwara, the appellant filed an appeal under Section 28 of the Act in the High Court of Madhya Pradesh at Jabalpur on 4th April, 2005, and the same was registered as First Appeal no.323 of 2005. Even before the High Court, on 12th March, 2007, the respondent wife expressed her desire to live separately from the appellant, but she did not want that a decree of dissolution of marriage be passed. In that view of the matter, by his order dated 21st March, 2007, the learned Single Judge dismissed the First Appeal. While dismissing the appeal, the learned Single Judge took note of the decision of this Court in similar circumstances in the case of Ashok Hurra v. Rupa Bipin Zaveri [1997 (4) SCC 226], wherein this Court granted a decree of mutual divorce by exercising its extra-ordinary powers under Article 142 of the Constitution of India. It was indicated that the High Court did not have such powers and Section 13-B required that the consent of the spouses on the basis of which the petition under Section 13-B was presented, had to continue till a decree of divorce was passed by mutual consent. On that basis, the learned Single Judge of the High Court, while dismissing the appeal, observed that the appellant would be free to file a petition of divorce in accordance with law, which would be decided on its own merits by keeping in mind the special fact that the parties were living separately for about five years and the respondent wife was adamant about living apart from her husband.

section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

As will be clear from the above, sub-Section (1) of Section 13-B is the enabling Section for presenting a petition for dissolution of a marriage by a decree of divorce by mutual consent. One of the grounds provided is that the parties have been living separately for a period of one year or more and that they have not been able to live together, which is also the factual reality in the instant case. Sub-Section (2) of Section 13-B, however, provides the procedural steps that are required to be taken once the petition for mutual divorce has been filed and six months have expired from the date of presentation of the petition before the Court. The language is very specific in that it intends that on a motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-Section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

21. While, therefore, following the decision in Smt. Sureshta Devi's case we are of the view that this is a fit case where we may exercise the powers vested in us under Article 142 of the Constitution. The stand of the respondent wife that she wants to live separately from her husband but is not agreeable to a mutual divorce is not acceptable, since living separately is one of the grounds for grant of a mutual divorce and admittedly the parties are living separately for more than seven years.

22. The appeal is, therefore, allowed. The impugned judgment and order of the High Court is set aside and the petition for grant of mutual divorce under Section 13-B of the Hindu Marriage Act, 1955, is accepted. There will be a decree of divorce on the basis of the joint petition filed by the parties before the Second Additional District Judge, Chhindwara, under Section 13-B of the Hindu Marriage Act, 1955, in respect of the marriage solemnized between the parties on 22nd June, 1985, according to Hindu rites and customs and the said marriage shall stand dissolved from the date of this judgment.

23. There will be no order as to costs.