SWANTANTRA VED SAHNI Vs. SANTOSH KUMARI

JUDGEMENT

(1.) A neat question of law arises tor consideration in this appeal, viz. where the two parties who have filed a joint petition for divorce by mutual consent under Section 13-B(1) of the Hindu Marriage Act, can the divorce be granted by the matrimonial court on a motion only by one of the spouses under Section 13-B(2) of the Act ?

(2.) . A joint petition for dissolution of the marriage by mutual consent was moved by the petitioner and the respondent on 10-8-1983. On 4-9-1984 the husband alone tiled the petition under Section 13-B(2) of the Act. The wife did not join the proceedings or in other words did not consent for the second motion to be made under the said sub-section. The learned ADJ dismissed the petition filed by the husband holding that if one of the parties with held the consent a decree for divorce cannot be granted under the said sub-section. On the facts of the case the learned Judge also opined that there was every likelihood that the wife had joined the petition under Section 13-B(1) without her free consent. The learned Judge has disagreed with the two decisions cited before him. They are: Jayashree Ramesh Loadha v. RameshBhikaji Loadha, (1984) D.M.C. 481 and Meena Duttav.Anirudh Dutta, II (1984) D.M.C. 388. These decisions are of the other High Court and there is no decision of this Court on this question.

(3.) . Section 13-B was added for the first time by the amending Act 68 of 1976. In the original text of the Hindu Marriage Act there was no provision for divorce by mutual consent. Section 13-B is, obviously, copied from Section 28 of the Special Marriage Act with some minor changes. The change introduced by Section 13-B is that whereas under Section 28 of the Special Marriage Act a second motion cannot be presented before one year and not later than two years, the Hindu Marriage Act, as amended, reduced the said periods to six months and eighteen months respectively. The Section 13-B may now be noted :-