Indian Kanoon - Search engine for Indian Law

Jharkhand High Court

Jyoti Devi vs Ashok Tamboli on 10 January, 2017

Author: H. C. Mishra

Bench: H. C. Mishra, S.N. Pathak

     IN     THE       HIGH     COURT    OF    JHARKHAND                 AT      RANCHI
                          F. A. No. 79 of 2016

     Jyoti Devi                                               ..... ...        Appellant
                                   Versus
     Ashok Tamboli                                             ..... ...         Respondent
                                --------
            CORAM       :    HON'BLE MR. JUSTICE H. C. MISHRA
                        :    HON'BLE MR. JUSTICE DR. S.N. PATHAK
                                ------
     For the Appellant                  : Mr. Arun Kumar, Advocate.
     For the respondent                 : Mr. Md. Kaisar, Advocate
                               --------
                  I.A. No. 5841 of 2016

06/ 10.01.2017

The present interlocutory application has been filed for condonation of delay of 42 days in preferring this appeal.

In view of the statements made in the interlocutory application, the delay in filing the appeal, is hereby, condoned.

The aforesaid interlocutory application, thus, stands allowed.

Heard learned counsel for the appellant and learned counsel for the respondent.

2. The appellant is aggrieved by the order dated 8.4.2016, passed by the learned Principal Judge, Family Court, Gumla, in Divorce Case No. 29 of 2013, whereby, the application for dissolution of marriage by a decree of divorce by mutual consent, filed under Section 13-B of the Hindu Marriage Act, by both the sides has been dismissed as infructuous due to lapse of time.

3. The impugned order shows that the application was jointly filed on 23.12.2013 for grant of divorce by mutual consent, under Section 13-B of the Hindu Marriage Act. Thereafter a petition under Section 25 of the Hindu Marriage Act was filed by the appellant in the Court below praying for grant of permanent alimony to her. Since then the parties were leading evidence in the Court below. The record further reveals that initially the application was filed for a decree of divorce by mutual consent, but later on it became contested matter and apparently the parties were no more in agreement since long. As a long period had lapsed after filing of the application under Section 13-B of the Hindu Marriage Act, the same was dismissed by the Court below as infructuous, though on the ground of lapse of time, but it also finds mentioned in the impugned order that the parties are no more in mutual consent, rather the matter became contested.

4. Learned counsel for the appellant submitted that the impugned order, passed by the Court below, is absolutely illegal and cannot be sustained in the eyes of law. It is further submitted that in any event, the application itself ought to have been converted into one under Section 13 of the Hindu Marriage Act.

5. We are unable to accept the submission of the learned counsel for the appellant, inasmuch as, the scopes of the applications under Section 13 of the Hindu Marriage Act and Section 13-B of the Hindu Marriage act are quite different. The pleadings also have to be absolutely different. For an application under Section 13 of the Hindu Marriage Act, the applicant has to make out a case for a decree of divorce on the grounds specified under Section 13 of the Hindu Marriage Act, whereas for dissolution of marriage by a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, all that has to be pleaded is that the parties are living separately for a period of one year or more, and that they have not been able to live together and that they have mutually agreed that the marriage be dissolved.

6. In view of the fact that the impugned order clearly shows that there is no more mutual agreement between the parties and the parties are now in contested issues, we are of the considered opinion that application under Section 13-B of the Hindu Marriage Act was mo more maintainable in the Court below and the same has rightly been dismissed by the Court below.

7. However, in view of the submission of learned counsel for the appellant, we give liberty to the appellant to move the Court below with an appropriate application under Section 13 of the Hindu Marriage Act for decree of divorce and petition for permanent alimony, if the appellant so desires.

8. There is no merit in this appeal, and the same is accordingly, dismissed.

( H. C. Mishra, J.) (Dr. S.N. Pathak, J.) Amitesh/-