JANARDHANAN Vs. SYAMALA KUMARY

JUDGEMENT

(1.) The appellant, a husband, filed a petition in the lower court for a decree of divorce under S.13 of the Hindu Marriage Act, 1955 (for short 'the Act') on the ground that his wife has, after solemnisation of the marriage, had voluntary sexual intercourse with another person. The wife (1st respondent) who resisted the petition, however, admitted her marriage with the appellant, but denied all the allegations relating to her character. While the original petition was pending, both the husband and wife filed a joint petition and prayed for a decree of divorce in terms of the said petition. Learned Sub Judge dismissed the original petition as well as the joint petition as per the impugned order. Hence this appeal at the instance of the husband.

(2.) The original petition was filed by the appellant in the lower court on 18-2-1985. The above mentioned joint petition was filed on 9-4-1987. The averments in the joint petition, inter alia, are that the marriage between the parties was solemnised on 13-5-1969 and three children were born to them, and that due to differences of opinion between the spouses they have been living separately for more than three years and that all possibilities of living together have become foreclosed and hence they have mutually consented to have a decree of divorce. The parties have withdrawn all other contentions raised earlier. It is also stated in the joint petition that monetary claims against the husband were settled as between them and provisions were made regarding custody of the children. The husband and wife were examined in court as witnesses and both of them spoke in support of the averments in the joint petition.

(3.) In dismissing the joint petition, learned Sub Judge advanced mainly three reasons. First is that since both parties made the motion on the joint petition only after the expiry of eighteen months of the presentation of the original petition, no order could be passed under S.13 B of the Act. The second reason is that since the joint petition was not verified in the manner provided by law the petition is defective and cannot be entertained. The third reason is that even if the joint petition was filed as a compromise petition envisaged in O.23 R.3 of the Code of Civil Procedure (for short 'the Code'), the same cannot be acted on in divorce proceedings under the Act.