NEENA BHATNAGAR Vs. BHASKAR MANI

JUDGEMENT

(1.) This appeal is filed by the wife challenging the order passed by the Family Court, Bangalore, closing the petition filed under Section 13B of the Hindu Marriage Act, 1955 (for short, 'the Act'), on the ground that once one of the party refused to give consent, it cannot proceed with the said petition. The respondent and the appellant are husband and wife, who are married on 23.2.1992 according to the Hindu rites and customs at Jaipur. They lived together till June 2007. Subsequently, they began to live apart in view of serious and irreconcilable differences between them. When all attempts to reconciliation failed and when they had no issues from the marriage, they presented a petition under Section 13B of the Act on 17.10.2008 through a common counsel for dissolution of their marriage. The case was numbered as M.C. No. 2720/2008. It appears, anterior to the presentation of the petition, they have entered into an agreement regarding their mutual obligations. The petition for divorce by consent came up for consideration before the Family Court on 17.4.2009 after the lapse of statutory period of six months. It was adjourned to 20.6.2009. The respondent changed his counsel on 3.7.2009. The appellant was unable to be present in the Court due to business commitments. The proceedings were adjourned to 24.7.2009. The respondent engaged yet another counsel. The respondent also filed a Memo for withdrawal of his consent. The case was posted for objection of the appellant to 27.7.2009. Objections were filed by the appellant setting out about how the respondent is going back on the terms of the compromise. On hearing both the parties and looking into the Memo as well as objections, the Court passed the order holding that once the consent has been withdrawn, the Court loses jurisdiction under Section 13B of the Act and therefore, the Family Court dismissed the petition as closed. Aggrieved by the said order of the Family Court, this appeal is filed by the appellant.

(2.) Learned counsel for the appellant submits that it is not a case where the appellant has done anything, which would disentitle her to the benefit of a decree for divorce by consent. In the statement of objections filed to the Memo, she has clearly set-out under what circumstances, the respondent has gone back on his compromise. The Family Court without even holding an enquiry about the correctness of the stand of each party and without finding out as to who is at fault committed serious error in dismissing the petition for divorce by consent and therefore, he submits that a case for interference is made out.

(3.) Per contra, learned counsel for the respondent contended that once the consent is withdrawn, there cannot be a decree for divorce by consent. The consent for divorce should be there on the day of filing of the petition and till the day the decree for dissolution of the marriage is passed. During the interregnum, at any time either of the party to the petition withdraws the consent, the Court loses its jurisdiction to pass the decree. Therefore, he submits that no case for interference is made out.