Andhra HC (Pre-Telangana)
Mrs. Padmakiran Rao vs Mr. B. Venkateramana Rao on 16 August, 1995
Equivalent citations: 1995(3)ALT154, 1996 A I H C 1717, (1996) MARRILJ 91, (1996) MATLR 20, (1995) 2 LS 206, (1996) 1 RRR 228, (1996) 2 HINDULR 271, (1995) 4 CURCC 9, (1995) 2 CIVILCOURTC 629
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
JUDGMENT P. Venkatarama Reddi, J.
1. This appeal under Section 28 of the Hindu Marriage Act is directed against the judgment in O.P. No. 311 of 1993 on the file of the Additional Subordinate Judge, R.R. District, whereby he dismissed the petition filed jointly by the appellant and respondent under Section 13-B of the Hindu Marriage Act, for granting divorce. The respondent has been residing in United States since the year 1987 and it seems he is employed there. The marriage took place on 19-8-1992. Unfortunately, just within a few days after the marriage, there was disruption in marital life and estrangement between the parties. It is averred in the petition that the marriage was not consummated and the respondent left for United States on 24-8-92. One year thereafter, a joint petition was filed under Section 13-B of the Hindu Marriage Act seeking divorce on the basis of mutual consent. The petition was verified at Hyderabad on 20th August 1993 by both parties and it was presented on the same day. The parties were represented by the same Counsel. As required by sub-section (2) of Section 13-A, the petition was posted for enquiry on 25-6-1994 i.e., after six months. At the enquiry the appellant herein (wife) examined herself and she reiterated her desire to get divorce. However, the respondent could not be present as he is residing in United States. At the same time, an affidavit signed on 22nd February 1994 and affirmed in the presence of a notary public was filed by the respondent. The respondent made it clear that the marriage had irretrievably broken down, that there are no mutual obligations or claims against each other and sought an order dissolving the marriage.
2. Relying on the wording - "after hearing the parties" in Sub-section (2) of Section 13-B, the learned Subordinate Judge took the view that both the parties to the marriage should necessarily be present in the Court for examination and the filing of affidavit will not be a substitute for that requirement. The learned Judge observed that unless the parties are personally present, it would be difficult for the Court to assess whether they have changed their mind since the date of filing the petition. We do not think that this is a correct view to be taken. 'Hearing' does not necessarily mean that both parties have to be examined. The word 'hearing' is often used in a broad sense which need not always mean personal hearing. In any case, the evidence of one of the parties i.e., the appellant herein was recorded by the Court. Thus, even if the word 'hearing' is construed in a literal sense that requirement must be deemed to have been satisfied in the instant case in view of the examination of the appellant. On the husband's side, there is evidence in the form of an affidavit which can be legitimately taken into account in view of Order XIX Rule 1 C.P.C. It is not as if the affidavit has been doubted or the other party wanted to cross-examine the deponent of the affidavit. When there are no suspicious circumstances or any particular reason to think that the averments in the affidavit may not be true, there is absolutely no reason why the Court should not act on the affidavit filed by one of the parties. The learned Judge fell into error of law in observing that he cannot look into the affidavit at all. There is also a valid reason for non-attendance of the respondent in the Court. In the circumstances, the order of the lower Court is set aside and the appeal is allowed. We declare that the marriage between the parties shall stand dissolved with effect from the date of this judgment and a decree for divorce be passed. We make no order as to costs.