Delhi High Court
Neelima Chopra vs Anil Chopra on 17 March, 1986
Equivalent citations: 1986(11)DRJ188
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
(1) The petitioner had filed a petition under Section 13B(1) of the Hindu Marriage Act, 1955 wherein she had prayed for divorce by mutual consent.
(2) On 22nd August, 1984 the preliminary statements of the parties were recorded by the Addl. District Judge and the case was adjourned leaving the parties to apply for its hearing after the expiry of the prescribed period.
(3) After the passing of the aforesaid order, it is stated that the parties continued to live separately. The petitioner-herein in fact got a job and has gone out of India. The parties had agreed that there was no hope of reconciliation and a second and final application under Section 13B(2) of the said Act was filed.
(4) The petitioner could not appear in person in Delhi due to her pre-occupation outside India and she then executed a power of attorney dated 23rd December, 1985 in favor of her counsel. The petitioner also sent affidavit testifying to the execution of the power of attorney. The attorney was authorised to do all acts, deeds and things necessary in order to obtain a decree for divorce, (5) The case came up for bearing, after application bad been filed on 15th February, 1986, on 17th February, 1986. By the impugned order the Additional District Judge has observed that in his opinion it would be preferable that both the parties, namely, the husband and the wife should appear in person for obtaining divorce by mutual consent. He has fixed the next date of hearing for 2nd April, 1986 on which date both the parties are required to appear in person.
(6) The short question which arises for consideration in the present petition filed by the wife is whether for the purposes of Section 13B(2), it is necessary that both the parties must be present in person.
(7) Section 13B was inserted by Act No. 68 of 1976. The object of this provision was that the parties should be in a position to obtain divorce on ground of mutual consent. The ground on which the divorce could be obtained was that the parties had been living separately for the prescribed period and that they had not been able to live together and they mutually agreed that the marriage should be dissolved.
(8) Section 13B of the said Act reads as follows : "13. B.Divorce by mutual consent-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in Sub-section (1) and not later than eighteen months after the laid 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 arc true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree." As I read it, if the conditions mentioned in Section 13B are satisfied then the Court has no option but to grant a decree for divorce. It is no doubt true that Sub-section (2) of Section 13B requires the Court being satisfied "after hearing the parties and after making such inquiry as it thinks fit". What is the satisfaction which is to be arrived at by the court is provided by the said provision itself. The satisfaction which has to be arrived at by the court has to be that firstly a marriage had been solemnized and secondly that the averments in the petition are true.
(9) For arriving at such a satisfaction, I fail to understand the need for the parties to appear in person. In order to arrive at this satisfaction it is open to the parties to file affidavits or authorize some one to make a statement testifying to the correctness of the contents of the petition. If both the parties, by way of affidavits or through counsel, state that they were married, and are able to produce proof of the marriage, and that they have been living separately and have not been able to live together for the prescribed period, then I see no reason as to why the court should not record its satisfaction as envisaged by Section 13B(2) and to pass a decree for divorce thereon.
(10) The learned counsel for the petitioner has drawn my attention to the decision of the Calcutta High Court in the case of Annalie Prashad v. Romeih Proihud, . That undoubtedly was a case under the Special Marriage Act but the provisions of the two Acts are similar. In that case also the trial court had desired the personal presence of the parties hut the Calcutta High Court observed that the same was not necessary. I am in respectful agreement with the aforesaid decision.
(11) For the aforesaid reasons the petition is allowed. The order dated 17th February, 1986 is set-aside and the trial court is directed to proceed with the case without insisting on the personal presence of any of the parties. There will be no order as to costs.