Calcutta High Court
Subhajyati Majumdar vs Smt. Arunima Majumdar on 10 December, 1990
Equivalent citations: (1991)2CALLT442(HC), 95CWN963, I(1992)DMC15
JUDGMENT Mahitosh Majumdar, J.
1. This appeal is directed against the judgment orderNo. 4 dated 22-3-90 passed by the District Judge, 24-Parganas at Alipore in Matrimonial Suit no. 724 of 1989 and Decree no. 1051 of 1990 signed on April 2 1990 dismissing the joint petition under Section 13-B of the Hindu Marriage Act, 1955, (for short the said Act hereafter). The -husband, the petitioner no. 1, married co-plaintiff petitioner no. 2 on January 16, 1986 according to the Hindu sacromental rites and ceremonies at the residence of the father of the petitioners no. 2 at premises no. 25/A, H.B. Town, P.O. Sodepur. PS. Khardah, District 24-Parganas (N). After the marriage, the petitioners found themselves temparamentally opposed to each other and there was lack of mental adjustment between them. In other words, the mental incompatibility started growing and became so pronounced that the petitioners were not in a position to live together. Since June 21, 1986 the petitioners have been living separately and they have not been able to live together. The petitioner no 1 resides at his father's residence at Tollygunge and the petitioner no 2 resides at her father's residence at Sodepur. Both the petitioners have also mutally decided to seek divorce on mutual consent and accordingly, they filed a jaint application for mutual divorce. The joint petitioner further discloses that the parties have no claim against each other including maintenance and mutual consent of divorce of the petitioners has not been obtained by force, fraud or undue influence. Both the plaintiff and the co-plaintiff i.e. the petitioner no 1 and the petitioner no. 2 affirmed affidavit respectively in support of the case for mutual divorce. After the expiration of the six months, the matter came up before the Court below on March 12, 1990 when the co-plaintiff i. e. the petitioner no. 2 was not present, but the learned Counsel appearing for the parties submitted for disposal of the matter in the absence of the petitioner no 2 i e wife The Court below, inter alia, recorded that it is required to be ascertained an to whether the petitioner no. 2 has given consent to the divorce by mutual consent. The Court below further recorded that it is necessary that an enquiry as to whether the marriage has broken down or not should be made in presence of petitioner no. 2 in Court and both parties are to attend the Court on 15th March. 1990.
2. By petition dated March 15, 1990 the petitioner No. 1 claimed that the present divorce petition should be allowed. It is also claimed by the learned Advocate on behalf of the petitioner no. 1 that mutual divorce should be granted in terms of Section 13-B of the said Act. The trial Court, after effective examination of the issue involved, was of the opinion that the decision does not apply to the facts and circumstances of the present case. In the said case, on the final date of hearing, the appellant-wife applied for divorce by mutual consent under the Special Marriage Act, 1954 for being allowed to give consent by affidavit. This was denied by the trial Court, but was allowed by the High Court.
3. The Court below held that final hearing has to be made only on motion by both the parties and the Court shall have the power to pass decree of divorce only after hearing the parties. The. word "parties" means both the parties and not one only. It is also recorded that the plaintiff did not care to say why the petitioner no. 2 was not present. Her absence indicates that she is not willing to proceed with the application for divorce when no cause for her non-appearance could even be indicated by the petitioner no. 1. Accordingly the suit is dismissed. Pursuant to the order passed by the Court the respondent was duly served with a notice to the effort that the matter would be heard. As the matter was placed for hearing and no one present at the time of hearing on her behalf, we shall new proceed with the hearing of the matter. Mr. G.A. Wilson-de-Rose, learned Advocate appeared for the appellant in the absence of the respondent.
4. The first point that emerges for determination as to whether the non-appearance of the wife respondent should be ground for dismissing the suit and also disallowing the application under Section 13-B of the said Act. For the sake of convenience Section 13-B of the said Act is quoted below :
"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 solemnised 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 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 presentation of the petition referred to in Sub-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 enquiry as it thinks fit, that a marriage has been solemnised 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."
5. We have now to examine the provisions of Section 13-B of the said act, Section 13-B was engrafted in the statute look so as to alleviate certain difficulties i.e. divorce by mutual consent was thus introduced.
6. M. Willson-de-Rose appearing on behalf of the appellant submitted that the Court is required to consider the effect of the application for divorce under Section 13-B of the said Act by mutual consent and the Court should examine the case in the perspective of the statutory provisions as contained in Sections 13-B, 21 and 23 of the said Act and the provisions as contained in Rules I, 3 and 5 of Order 23 of the Code of Civil Procedure.
7. Before examining the aforesaid provisions if is appropriate for the Court to examine the relevant averments made by the husband and the wife, the petitioner no. 1 and the petitioner no. 2 respectively, for divorce by mutual consent. Both the husband and the wife, after five months from the date of marriage, start living separately and it was not possible for the husband and the wife to live together. Accordingly, their decisions to obtain divorce by mutual consent culminated in the filing of the petition for divorce by mutual consent. It is also specifically averred that since May 21, 1986 the parties have been living separately and they have not been able to live together and they mutually agreed that the marriage should be dissolved.
8. After expiry of six months, the petition was placed before the District Judge for hearing when the wife, petitioner no. 3, was not present and the Court recorded an order as is indicated hereinbefore. The appellant filed application on March 15, 1990 before the Court below, stating therein that the position for divorce by mutual consent duly supported by an affidavit of both the husband and the wife was preported before the Court. Both the petitioners duly swore and affirmed the affidavit. Both of them duly consented to the dissolution of marriage without any fraud, coercion and undue influence, and the consent to the dissolution of marriage was founded upon the free-will of the petitioners. On March 13, 1990, the wife, the petitioner no. 2, did not attend the Court below though her advocate was present in the Court supporting on March 13, 1990 for ascertaining as to whether the petitioner no. 2 gave the consent by divorce by mutual consent or whether the marriage has borken down or not. The petitioners further averred in parargraph 5 of the application filed on March 15 1990 that even if the petitioner no. 2 failed to attend the Court, a decree, as prayed for, be passed in view of the decisions . Mr. Wilson-de-Rose took pains in placing the basic aspect of the entire matter and after placing the relevant averments, he preceded to submit that the Court ought to have cosidered the aforesaid provisions of the Act as also the aforesaid provisions of the Code of Civil Procedure (for short the Code hereafter) Mr. Wilson-de-Rose further contended that Section 21 of the said Act provides that the Code shall regulate all the proceedings under the Act subject to the provisions contained in the Act and Rules-framed by the High Court. It is also claimed by Mr. Wilson-de-Rose that the Court never considered whether the consent once again accorded can be later on withdrawn and whether such conduct in the facts and circumstances of this case is relevant under Section 13-B read with Order 23 Rule 1(5) of the said Code. Attention of the Court is also draw to the provisions of Sub-section (1) of Section 13-B of the said Act Mr. Whilson-de-Rose further submitted that the application so made under Sub-section (l) of Section 13-B is to be enquired into, if in the meantime, it is withdrawn.
9. Further reliance is placed under Sub-section (2) of Section 13-B of the said Act Sub-section (2) of Section 13-B of the said Act provides that the Court shall, on being satisfied after hearing the parties and after making such enquiry as it thinks fit the averments made in the petition, pass a decree for divorce. There is no provision, according to Mr. Wilson-de-Rose in the said Act as rules as to how the proceeding under, the said Act can be withdrawn. The Court also considers it necessary to go in for examination of the provisions of Rule 1 and 4 of Order 3 and Rule l(3)(8) of Order 23 of the Code.
10. The learned Advocate appearing for the respondent, in our view, was expressly authorised to act for obtaining a decree of divorce by mutual consent The learned Judge overlooked all the basic requirements of law as a result where of the suit for divorce was dismissed. It must be recorded that continuation of Section 23(1)(c) of the said Act purported cannot be a bar to Court's juridiction under Section 13-B of the said Act to grant a decree of divorce by mutual consent. The contention of Mr. Wilson-de-Rose in that the prosence of the wife, the petitioner no 2, in the background of the facts situation in not material, and in our view has much force in it.
11. The objection of the scheme of Section 13-B of the said Act would be meaningless if the Court takes a view or holds that after having made joint petition, any party can withdraw that application and that too, without the consent of the other party It is also significant to record that Sub-section(2) of Section 13-B of the said Act provides, the Court on being satisfied after hearing the parties and after making such enquiry as it thinks fit that the avernment in petition are correct and true. Mere non-appearance of the wife, the petitioner no. 2, could not be a ground for dismissing the suit and disallowing the application under Section 13-B of the said Act The "pleader" is Section 2(15) of the code read with Section 2(15) of the Code includes the legal practitioner" and has the actual authority to act by way of compromising a case in which he is engaged even without specific consent from the client and to take such steps as are necessary for conducting the case, but such act of legal practitioner is subjected to two overriding considerations. He must act in good faith and for the benefit of his client. When the learned Advocate having authority to obtain a divorce by mutual consent, the court cannot ignore the power and authority of the learned Advocate appearing on behalf of the petitioner no. 2. This branch of submission of Mr. Wilson-de-Rose that the Court should have taken a note of Rules 1 and 4 of Order of the Code has merit.
12. The Trial Court completely overlooked the aforesaid provisions of Rules 1 and 4 of Order 3 of the Code and also did not consider the submission of the learned Lawyer appearing for the wife, the petitioner no. 2 that the Court should dispose of the matter in absence of the petitioner no. 2.
13. The interesting point that has been canvassed by Mr. Wilson-de- Rose is that the Court should consider the other salient aspect of the matter that in the absence of provision for withdrawal of a proceeding under the Act, recourse to the provision of the Code is to be made for finding out as to when and under which the proceeding can be withdrawn. Order 23 Rule 1 of the Code deals with abandonment of suit as well as withdrawal of a suit. Sub-rule (3) of Order 23 of the Code further provides for withdrawal of a suit with liberty to file a fresh suit on the same cause of action The Rules gives mandate to the Court to record a lawful adjustment of compromise and pass a decree in terms of such compromise or adjustment. Such a consent decree is not appealable because of the bar in Section 96 (3). The agreement compromised or satisfaction contemplated by this rule may (1) relate to the whole suit or (2) it may relate only to a part thereof, or (3) it may also compromise matters that do not relate to the suit When the agreement relates to the whole suit the Court must, on being invited by the parties record the agreement and pass a decree in accordance with the agreement, and the suit stop there. Where the agreement relates to a part only of the suit, the Court must on the application of the parties, pass a decree in accordance with the agreement and the suit may be proceeded with as to the rest. The Court below, therefore failed to take into account that in the absence of application for withdrawal by the wife, petitioner no. 2 strengthened by consent of the petitioner no 1 her husband, the Court cannot dismiss the suit on the ground that the petitioner no 2 did not appear in person. There cannot be abandonment of the petitioner without the consent of the petitioner no. 1. The position stands further worsened in the facts and circumstances of the case. Therefore, the petition filed on September 9, 1989 remains in the same position as it was on the date of presentation of the suit. In the absence of materials, the Court below, as pointed out Mr. Wilson-de-Rose, was not justified is dismissing the suit or to disallow the petition by divorce by mutual consent,
14. The Court did not embark upon any adjudication as envisaged under Sub-section 2 of Section 13-B of the said Act. The Court overlooked and ignored the material circumstances which definitely show that the husband and wife filed the application for divorce by mutual consent. There is no withdrawal of the said consent by the wife, the petitioner no. 2, nor are there material before the Court below for taking a decision contrary to the material on record. It is also an admitted position that both the petitioner and the wife petitioner no. 2 mutually agreed that the marriage should be dissolved and also the circumstances suggest that the parties have been residing separately for more than one year. When the requirements under Section 13-B of the said Act for making a joint application for divorce are manifestly present, we cannot uphold the decision of the Court below. More so, where there is no petition on behalf of the wife, the petitioner no. 2, nor any submission on her behalf was made by the learned advocate appearing for her before the Court below on March 12, 1990 that the petitioner no. 2 intends to withdraw the case, the Court below should not have dismissed the suit and disallowed the application.
15. It is also to be recorded that the learned Advocate appearing for the wife petitioner no. 2, accepted the petition for dissolving the marriage on March 15 1990 and did not raise any objection thereto. After enactment of Section 13-B of the said Act, it is not proper for this Court to take into account that in effect it is not a lawful agreement. If the husband and wife agreed to take divorce under Section 13-B of the said Act by mutual consent, the Court, in the absence of any objection, is required to grant divorce.
16. Agreement to take divorce was not looked upon as a lawful agreement till Section 13-B of the said Act was engrafted in the Act and after enactment of Section 13-B, it would be futile to say that such agreement of divorce is not to be taken as a lawful agreement. We, therefore hold that the petition for divorce by mutual consent under Section 13-B of the said Act cannot be disallowed merely on the ground that the wife, petitioner no. 2, was absent on the date fixed for disposal although the fact remains that the husband was present and the learned lawyer for the wife was present who did not raise any objection to the disposal of the suit for divorce by mutual consent of the husband and the wife It is an admitted position that joint petition was made for obtaining divorce due to break down of marriage. The legislature has engrafted Section 13-B of the said Act so as to surmount to get over all those situation. It is also to be recorded that mere absenae of the respondent cannot be a ground for dismissing the suit under Section 13-B of the said Act. The suit for divorce is by way of mutual consent. The trial judge also did not record the reasons in support of his finding that the suit should be dismissed. In those circumstances we are of the view that the judgment and decree of the learned trial Court suffers from basic infirmities. Non-consideration of the aforesaid provisions renders the decision of the trial Court infirm in law.
17. In view of the aforesaid discussion we are of the view that this is a clear case where divorce by mutual consent should have been granted. The appeal, is therefore allowed. The decree passed by the trial Court is set aside and in its place, a decree for divorce by mutual consent (as contemplated under Section 13-B of the said Act) is hereby granted so as to dissolve the marriage of the petitioner No. 1 and petitioner No. 2.
18. There will be no order as to costs.
Abani Mohan Sinha, J.
I agree.