Calcutta High Court
Swagata Ghosh vs Debasis Ghosh on 19 April, 2005
Equivalent citations: 2005(4)CHN716
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This appeal is at the instance of a wife in proceedings under Section 13B of the Hindu Marriage Act ("Act") and is directed against judgment and decree dated July 12, 2004 passed by the learned Trial Judge thereby passing a decree for divorce on mutual consent.
2. The only question that arises for determination in this appeal is whether a Court dealing with an application under Section 13B of the Act is entitled to pass a decree on a petition under Section 13B of the Act notwithstanding the fact that on the date of hearing fixed after six months in terms of Sub-section (2) thereof, one of the parties did not appear and jointly move the application.
3. The facts giving rise to filing of this appeal may be summed up thus:
On 23rd September, 2003 an application under Section 13B of the Act was filed by both the parties and the Court fixed on 27th July. 2004 for hearing. Subsequently, on 23rd April, the husband filed a petition with the prayer for shifting the date of hearing to an earlier date. Although the copy of such application was served upon the wife, yet, nobody appeared on her behalf and the Court preponed the date to 27th April, 2004.
4. On 27th April, 2004 due to resolution of the Bar Association, the learned Advocates underwent a cease-work and the Court suo motu adjourned the hearing and fixed the next date on May 5, 2004 for hearing.
5. On May 5, 2004 the husband filed hazira and had given evidence in support of the application of divorce on mutual consent. At that time, the learned lawyer for the wife submitted that he had not received any instruction from his client and the Court in such circumstances, fixed on 12th July, 2004 for evidence of the wife and also for further orders.
6. On 12th July, 2004, the husband alone appeared but none appeared on behalf of the wife and the Court after hearing the learned Counsel for the husband allowed the application by relying upon the decision of a Division Bench of this Court in the case of Subhajyoti Majumdar v. Arunima Majumdar reported in 95 CWN 963 and also of a decision of Punjab & Haryana High Court in the case of Nachhattar Singh v. Harcharan Kaur . According to the learned Trial Judge, when wife was not coming forward to oppose the prayer of divorce, it should be presumed that wife had not withdrawn her consent and as such, the decree might be passed on the basis of materials-on-record.
7. Mr. Chatterjee, the learned Senior Counsel appearing on behalf of wife/appellant has contended that the learned Trial Judge acted without jurisdiction in passing such decree when on the date of hearing, the wife was not present. Mr. Chatterjee contends that the decision of this Court relied upon by the learned Trial Judge is impliedly overruled by the decision of the Supreme Court in the case of Smt. Sureshta Devi v. Om Prakash . So far the decision of the Punjab and Haryana High Court referred to in the judgment of the learned Trial Judge is concerned Mr. Chatterjee contends that the said decision has been reversed by the Division Bench of the same High Court as would appear from the decision of the Supreme Court in the case of Smt. Sureshta Devi (supra).
8. Mr. Banerjee, the learned Senior Advocate appearing on behalf of respondent has, however, opposed the aforesaid contentions of Mr. Chatterjee and it is contended that in the decision of the Supreme Court referred to above, one of the parties specifically withdrew the consent earlier given, but in the case before us, there is no specific withdrawal of the consent and from the mere fact that the wife was not coming forward to support the application, it cannot be presumed that she had withdrawn her consent earlier given. Mr. Banerjee further relied upon the provisions contained in Section 23(1)(bb) of the Hindu Marriage Act and contended that all that is required to be seen at the time of hearing of an application under Section 13B of the Act is that whether the consent had been obtained by force, fraud or undue influence. According to Mr. Banerjee, it is for the party alleging such force, fraud or undue influence to prove such fact but in this case neither the wife has made any such allegation nor had any such material been brought before the Court showing that the consent initially given was vitiated by fraud, force or undue influence. He, thus, prays for dismissal of the appeal.
9. After hearing the learned Counsel for the parties and after going through the provisions contained in Section 13B of the Act, we find that under the scheme of the said provision, after filing of a joint application the same should be further placed for hearing "on the motion of both the parties" made not earlier than six months after the date of presentation and not later than eighteen months after the said date. In the case before us, the application was filed in the month of September, 2003 and at the time of hearing in terms of Sub-section (2) thereof only the husband appeared but wife was absent. Therefore, in order to get the relief of mutual divorce on the application of the parties, it is necessary that it must be moved by both the parties on the second occasion; but if one of them is absent, the ingredients of Section 13B(2) are absent and the Court could not presume that wife has not withheld her earlier consent. In the decision of the Supreme Court in the case of Smt. Surestha Devi v. Om Prakash , the Supreme Court made it clear that after the expiry of six months from the date of initial presentation of the application, the same must be jointly moved. We, therefore, find no substance in the contention of Mr. Banerjee that unless there is specific denial of due consent by one of the parties, even if, one of them does not appear to move the same after expiry of six months and before the lapse of eighteen months, the Court is entitled to proceed further.
10. Regarding the decision of the Punjab and Haryana High Court relied upon by the learned Trial Judge, it appears that the said decision has subsequently been reversed by a Division Bench of that very Court on appeal and such decision is . Moreover, after the decision of the Supreme Court in the case of Sureshta Devi (supra), there is no scope of doubt that the decision of the Division Bench of this Court in the case reported in 95 CWN 963 is no longer a good law.
11. We are quite conscious that the propriety of the decision in the case of Surestha Devi (supra), has been questioned by another Bench consisting of two Judges in a subsequent decision of the Supreme Court in the case of Asoke Hurra v. Rupa Asoke Hurra where the said Bench disagreed with the view taken in the case of Surestha Devi (supra), and but without referring the matter to a Larger Bench, in the facts of that case, decided to grant relief to the husband by not only granting a divorce but also quashing the criminal proceedings under Section 494 of the Indian Penal Code on condition of payment of Rs. 10 lakh by the husband. At this stage, it will be profitable to refer to the following observation of the Supreme Court in the case of Vijay Laxmi Sadho v. Jagdish reported in AIR 2001 SC 600 while pointing out the duty of a Co-ordinate Bench if it is unable to agree with the earlier decision of another Bench of the same strength:
"It is well-settled that if a Bench of co-ordinate jurisdiction disagrees with another Bench of co-ordinate jurisdiction whether on the basis of "different arguments" of otherwise, on a question of law, it is appropriate that the matter be referred to a Larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs."
12. We are, therefore, unable to treat the aforesaid decision in the case of Asoke Hurra (supra), as a valid binding precedent.
13. As regards the provisions contained in Section 23(1)(bb) of the Act relied upon by Mr. Banerjee, those are additional instructions given to the Court while dealing with the proceedings under the Act but as pointed out in Section 23(1)(a), unless the ground of granting relief exists, a Court is not competent to grant such relief. Therefore, if the requirements of Section 13B(2) are not satisfied, it is preposterous to suggest that by taking aid of Section 23(1)(bb) of the Act, the Court should ex parts decide whether any force, fraud or undue influence had been exerted at the time of filing of the application and that if on the basis of ex parte evidence, the Court is satisfied that there was no such force, fraud or undue influence, the Court will grant decree notwithstanding the fact that one of the parties did not move the same on the date of hearing fixed after six months from the date of presentation of the same. We must not lose sight of the fact that the legislature has cast a duty upon the Court to not only see that the consent was not obtained by force, fraud or undue influence but also to be satisfied that even after six months from filing of the application, the parties have not changed their earlier decision and such fact must be conveyed to the Court "on the motion of both the parties."
14. We, thus, find substance in the contentions of Mr. Chatterjee that the learned Trial Judge could not grant relief of divorce to the husband when the application for divorce on mutual consent was not jointly moved after the expiry of six months from the date of presentation of the application due to absence of the wife.
15. We, thus, set aside the judgment and decree passed by the learned Trial Judge. In the facts and circumstances, there will be, however, no order as to costs.
Rajendra Nath Sinha, J.
16. I agree.