1 sa538.18 judgment.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 538 OF 2018
APPELLANT Shri Ajay s/o Bhikulal Gujar,
(Ori. Petitioner Aged about 48 years, Occ: Service,
No.1/Respondent R/o Loharpura near Bajaria, Nagpur.
No.1)
VERSUS
RESPONDENT Smt. Shyamali w/o Ajay Gujar
(Ori Ptnr. No.2/ Aged about 45 years, Occu: Household
Appellant) R/O C/O Sukhlal Kaithwas, Near Batra
Daal Mill, Malipura, Yavatmal.
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Shri N.R. Bhishikar, counsel for the appellant.
None for Respondent.
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CORAM : SMT. M.S. JAWALKAR, J.
RESERVED ON : 31/01/2022
PRONOUNCED ON : 09/02/2022
ORAL JUDGMENT :
1] Hearing was conducted through video conferencing
and the learned Counsel agreed that the audio and visual
quality is proper.
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2] Vide order dated 29/11/2021, the matter was fixed
for final disposal, in spite of service, the respondent chooses
to remain absent.
3] Admit. Appeal is taken up for final disposal in view
of order dated 20/01/2022.
4] Learned counsel for the appellant submits that,
present appeal is filed being aggrieved by the impugned
judgment and decree passed by the First Appellate Court
setting aside the judgment and decree passed by the learned
Trial Court by which, divorce by mutual consent was granted.
It is submitted that on 01/02/1998, the appellant and
respondent got married as per the Hindu rites and rituals. As,
there were disputes arose between them, the parties
approach, the learned Civil Judge, Senior Division, Yavatmal
with their matrimonial dispute. Wife/Respondent filed suit
for restitution of conjugal right whereas appellant/husband
filed suit for decree of divorce. As wife’s suit has decreed and
suit of husband for divorce is dismissed, husband filed two
separate appeals before First Appellate Court.
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5] On 23/11/2013, the parties were referred to Lok-
Adalat and matter was amicably settled, as party decided to
seek a decree of divorce by mutual consent, by which the
terms and conditions were agreed between them. Pursuant to
that the appellant paid a sum of Rs. 6,50,000/- to the
respondent towards maintenance as per terms. The parties
jointly applied before the learned Trial Court for decree of
divorce under Section 13B of the Hindu Marriage Act.
Surprisingly, after receiving sumptuous amount from the
appellant and also withdrawal of appeal filed by husband, the
respondent/wife file a Pursis withdrawing her consent for
divorce by mutual consent. On 03/02/2015, the learned Trial
Court allowed the petition under Section 13B and passed the
decree of divorce by mutual consent. The said decree of
divorce was challenged by the respondent by filing an appeal
on 28/04/2015. The learned First Appellate Court vide
impugned judgment and decree quashed and set aside the
decree of divorce by mutual consent passed by the learned
trial Court.
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6] The substantial question of law framed in this
appeal by this Court vide order dated 29/11/2021 is as
follows:
“Once, the parties having acted upon the terms
and conditions for decree of divorce by mutual
consent and also the decree having been passed,
whether it is open for a party to challenge the
same?”
In spite of service of notice respondent/wife remained absent.
7] It appears that the appellant and respondent filed
petition for divorce by mutual consent. It was agreed to pay
Rs.13,00,000/- by appellant herein to respondent/wife
towards maintenance. Accordingly, on the date of filing of
petition under Section 13B of the Hindu Marriage Act, the
petitioner had deposited Rs. 6,50,000/-. Remaining amount
was agreed to be paid on the date of second motion. In the
meanwhile, on 26/08/2014, respondent/wife withdrawn her
consent for divorce by filing Pursis Exhibit-8. The respondent
objected the same and on the next date filed his evidence
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affidavit (Exh.13). The respondent/wife also filed evidence
affidavit (Exh.17). The learned trial Court after hearing both
the parties and on the basis evidence on record, dissolved the
marriage between the parties by mutual consent. The
respondent/wife filed appeal, inter-alia contending that
during the subsistence of marriage, the appellant/husband
performed his second marriage and this fact was suppressed
at the time of filing of petition for mutual divorce.
8] Learned Lower Appellate Court held that, if the
petition is filed simplicitor under Section 13 B of the Act for
divorce by mutual consent, the Court must satisfy itself that
the consent given by the parties continues till the date of
granting decree of divorce. Even if, one party unilaterally
withdraw his/her consent, the Court does not get jurisdiction
to grant decree of divorce by mutual consent, in view of the
mandate of Section 13 B of the Act. Though learned
Appellate Court observed that, ‘it is no doubt true that in the
terms of compromise before Lok-Adalat, parties arrived at
amicable settlement and, thereby, filed petition for mutual
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divorce and, accordingly, made part payment to the
appellant’, the Appellate Court set aside the decree of
divorce. The Court further observed that as per Section 13B
(2) of the Hindu Marriage Act, the consent given by parties
needs to be continued till the date of granting decree of
divorce.
9] Learned counsel for the appellant relied upon the
following citations to support the contentions of the
appellant/husband:-
1] Prakash Alumal Kalandari V/s Jahnavi
Prakash Kalandari reported in AIR 2011
Bom 119.
2] Anil Kumar Jain V/s Maya Jain, reported in
AIR 2010 SC 229.
3] Ashok Hurra and others V/s Rupa Bipin Zaveri
and others reported in AIR 1997 SC 1266.
10] In the matter of Prakash Alumai Kalandari
(supra), this Court held that the parties having acted upon
the Consent Terms even in part including withdrawal of the
pending matter, another party cannot be allowed to extricate
himself from his commitment. This Court held that :
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Para-16
“As aforesaid, if the Petition is filed “simplicitor
under Section 13B of the Act” for divorce by
mutual consent, the Court must satisfy itself that
the consent given by the parties continues till the
date of granting decree of divorce. Even if one
party unilaterally withdraws his/her consent, the
Court does not get jurisdiction to grant decree of
divorce by mutual consent in view of the mandate
of Section 13B of the Act. However, the situation
would be different if the parties in the first
instance resort to Petition for relief under Section 9
or 13 of the Act and during the pendency of such
Petition, they decide to invite decree for divorce by
mutual consent. On the basis agreed agreement, if
the parties were to execute Consent Terms and
then file a formal Petition/Application to convert
the pending Petition to be treated as having been
filed under Section 13B of the Act to grant decree
of divorce by mutual consent, then, in the latter
proceedings, before the decree is passed, one party
cannot be allowed to unilaterally withdraw the
consent if the other party has already acted upon
the Consent Terms either wholly or in part to
his/her detriment. In other words, the Court will
have to be satisfied that: (i) there is sufficient,
good and just cause for allowing the party to
withdraw his consent, lest, it results in permitting
the party to approbate and reprobate; (ii) that the
other party would not suffer prejudice which is
irreversible, due to withdrawal of the consent. If
this twin requirement is not satisfied, the Court
should be loath to entertain the prayer to allow the
party to unilaterally withdraw his/her consent.”
11] My attention is drawn by the counsel for the
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appellant to award passed in Lok-Adalat dated 23/11/2013.
By this award, the appeals which were filed by the appellant/
husband against the decree in favour of wife for restitution of
conjugal rights and dismissing the petition for divorce were
withdrawn. Not only this, the appellant deposited half of the
amount i.e. Rs. 6,50,000/- (as per the terms of consent
decree) and the said amount was duly withdrawn by the
wife. As held by this Court, once the respondent acted upon
consent terms and appellant performed his part of obligation
and committed himself to pay the amount as agreed upon
towards maintenance and also withdrawn appeals, the
respondent cannot be permitted to withdraw her consent
unilaterally. Therefore, the trial Court has rightly rejected the
unilateral withdrawal of consent. The learned trial Court also
observed while passing order for dissolution of marriage that
the parties have not only entered into compromise, but acted
upon by the wife and has received amount of Rs. 6,50,000/-
in terms of compromise. Appeals filed by husband also
disposed off by an Award before Lok-Adalat.
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12] It is also matter of record that the petitioner No.1/
husband deposited remaining amount of Rs. 6,50,000/- in
the Court. Wife has consented before the Court in earlier
pending proceedings i.e. in pending appeal before Lok-Adalat
and therefore Award disposing of the appeal came to be
passed. Thus, her contention that her consent was obtained
by inducing her was held having no substance. The learned
trial Court has rightly held that the petition under Section
13B is outcome of settlement between the parties in earlier
proceeding before Lok-Adalat.
13] It appears that learned Appellate Court relied on
citations Anil Kumar Jain vs. Maya Jain, reported in AIR
2010 SC 229 held that these powers of granting divorce by
mutual consent is exercised under Article 142 of Supreme
Court. It would not be out of place to refer and rely recent
judgment of the Hon’ble Apex Court i.e. Amardeep Singh v/s
Harveen Kaur, reported in (2017) 8 SCC 746, wherein it is
held that where the Court dealing with a matter is satisfied
that a case is made out to waive the statutory period under
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Section 13-B (2), it can do so after considering the
following :-
“(i) the statutory period of six months specified in
Section 13-B(2), in addition to the statutory period
of one year under Section 13-B (1) of separation of
parties is already over before the first motion
itself;
(ii) all efforts for mediation/conciliation including
efforts in terms of Order 32-A Rule 3 CPC/Section
23 (2) of the Act/Section 9 of the Family Courts
Act to reunite the parties have failed and there is
no likelihood of success in that direction by any
further efforts;
(iii) the parties have genuinely settled their
differences including alimony, custody of child or
any other pending issues between the parties;
(iv) the waiting period will only prolong their
agony.
Since the period mentioned in Section 13-B (2) is
not mandatory but directory, it will be open to the
court to exercise its discretion in the facts and
circumstances of each case where there is no
possibility of parties resuming cohabitation and
there are chances of alternative rehabilitation.
It further held that, object of Section 13-B (2) is to
enable parties to dissolve marriage by consent if
marriage has irretrievably broken down and to
enable parties to rehabilitate as per available
options. Further held that object of cooling-off
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period of six months before grant of decree of
divorce is to safeguard against hurried decision, if
there is possibility of reconciliation. Object is not
to perpetuate purposeless marriage or to prolong
agony of parties where there are no chances of
reconciliation.
14] The Hon’ble Apex Court further guided that while
exercising discretion the court consider following factors:-
(i) statutory period of six months specified in
S.13-B (2) in addition to statutory period of one
year separation under S.13-B (1) is already over
before first motion itself;
(ii) no likelihood of reconciliation between parties;
(iii) parties have genuinely settled all their
differences including alimony, custody of child or
any other pending issue; and
(iv) whether waiting period would only prolong
agony.
By this judgment, it is clarified the concerned Court may
exercise its discretion to waive period and not only Hon’ble
Apex Court under Article 142. After satisfying Court may
exercise its discretion to put an end to prolonged agony of
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parties.
15] In the present matter, the appellant and respondent
residing separately since 2001. As both of them filed petition
for divorce by mutual consent for which wife shown her
consent. In view thereof, appeals pending before the
Appellate Court filed by appellant husband were withdrawn.
The terms of award in Lok-Adalat reflecting number of
petition under Section 13B. Thus the said petition is filed on
representation of wife that she is agreeable to divorce by
mutual consent. Not only this, the amount of Rs. 6,50,000/-
was deposited by the appellant husband and wife has
withdrawn the same. The husband/appellant acted to her
prejudice by accepting terms of compromise favourable to
wife i.e. withdrawal of appeal and depositing of amount of
Rs. 6,50,000/-. Wife is, thus, estopped from withdrawing her
consent. As held in Prakash (supra) consent cannot be
withdrawn unilaterally until and unless it is shown that (i)
there is sufficient, good and just cause for allowing the
parties to withdraw his/her consent, lest, it results in
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permitting the party to approbate and reprobate; (ii) that the
other party would not suffer prejudice which is irreversible,
due to withdrawal of the consent. The decree passed by
learned trial court is perfectly justified as there is no
sufficient good and just cause for such withdrawal on vague
allegations. The learned Appellate Court failed to take into
account all these important aspects while setting aside the
judgment and decree passed by learned Trial Court. In my
considered opinion, the learned Trial Court rightly
appreciated the facts that parties are residing separately since
2001, the husband has withdrawn the appeal in view of filing
of H.M.P. for divorce by mutual consent. Both the parties
acted as per the terms in the petition by mutual consent and
rightly exercised its discretion rejecting unilateral withdrawal
by the wife.
16] The judgment passed by the First Appellate Court
is liable to be set aside. The substantial question of law
involved in the matter is answered in the negative and
accordingly, I proceed to pass the following order:
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ORDER
a) Appeal is allowed.
b) The judgment and decree dated 07/04/2018
passed by the learned District Judge-3, Yavatmal in
Regular Civil Appeal No. 49/2015, is hereby
quashed and set aside.
c) The judgment and decree dated 03/02/2015
passed by 3rd Joint Civil Judge, Senior Division,
Yavatmal in H.M.P. No. 260/2013, is hereby
confirmed.
d) Decree be drawn accordingly. No order as to costs.
e) Liberty is granted to the respondent/wife to
withdraw the remaining amount deposited by the
appellant/husband herein before the learned Trial
Court.
[SMT. M.S. JAWALKAR, J.]
rkn
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