CHANDER KANTA Vs. HANS KUMAR ABD ANR

JUDGEMENT

(1.) The petitioner who is an I.A.S. officer and respondent No. 1 who is working in the Rajya Sabha Secretariat were married on 13th April 1976 in accordance with Hindu rites. On 20th February 1978 a girl was born out of the said wedlock. Differences arose between the parties and the petitioner filed a petition for divorce being H.M.A. 237 of 1978 under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as the Act) which was dismissed on 15th January 1980. Tension and disharmony continued between the parties and thus they filed a petition for divorce by mutual consent under Section 13B(1) of the Act on 15th December 1983. In view of Sub-section (2) of Section 13B, a decree of divorce could not be passed straight away and, therefore, the file was ordered to be consigned to Record leaving the parties at liberty to take further action as contemplated under Section 13B(1) of the Act. Since respondent No. I failed to join in the second motion as required under Section 13B(2) within 18 months of the presentation of the petition, the petitioner filed an application on 1st July 1985- seeking a decree of divorce based on the first motion itself.

(2.) . It was averred in the said application that after the petitioner and respondent No. I had presented the petition under Section 13B(1) of the Act, the petitioner and respondent No. I have not lived together. Reconciliation between the parties is not possible and since respondent No. I was refusing to join in the second motion as required under Sub-section (2) of Section 13B he be directed to appear and make his statement so that a decree of divorce by mutual consent can be passed. Respondent No. I filed a reply to this application and stated that. he had given his consent at the time of the presentation of the petition out of fit of anger and is not any more agreeable to divorce by mutual consent and, thus, the application is not maintainable. restated that the averments in the petition under Section 13B(1)arenot 'correct inasmuch as at the time of the presentation of the petition, the parties were not living separately and even thereafter lived together. Thus, the application is not maintainable and merits dismissal.

(3.) . The Additional District Judge, Delhi came to a conclusion that the controversy raised between the parties cannot be resolved without evidence and thus by order dated 1st October 1986 fixed the case for evidence. The petitioner thereafter filed an application undersection 1 15 of the Evidence Act read with Section 114 of the Code of Civil Procedure (hereinafter referred to as the Code) for review of the order dated 1st October 1986 contending therein that the respondent cannot be allowed to withdraw his previous statement giving consent for divorce and thus he is estopped from leading evidence. The trial court by the impugned order dated 2nd January 1987 rejected the application of the petitioner and held that even if the statement of the respondent-husband in the first motion that the petitioner and respondent had been living separately since 17th October 1982 was taken to be conclusive qua him, the court has to look into the subsequent conduct of the parties after the first joint motion. The trial court held that if the husband was able to show that he had been living or had resumed cohabitation with the petitioner after the first motion, a decree of divorce cannot begranted. The trial court thus held that the controversy cannot be resolved without evidence and allowed the husband to adduce evidence. This order of the trial court is challenged by the petitioner wife by way of this petition under Article 227 of the Constitution of India.