GIRIJA KUMARI Vs. VIJAYANANDAN

JUDGEMENT

(1.) The two questions which are inter linked, on the facts of the case (1) whether this appeal is maintainable under S.19 of the Family Courts Act, 1984 and (2) whether the decree for divorce passed under S.13-B of the Hindu Marriage Act is correct can be disposed of together.

(2.) The appellant, and her husband, the respondent in the above M.F. A. have filed a petition before the Family Court for a decree of divorce under S.13-B of the Hindu Marriage Act. After expiry of the period of six months on the motion of the husband (the respondent herein), the Family Court took up the matter and examined him as P.W.1. The appellant was absent. Nor did she withdraw the petition. After examining the respondent, the Family Court held that as the appellant did not turn up to withdraw the petition filed under S.13-B of the Hindu Marriage Act the appellant is a consenting party to the divorce and accordingly passed a decree for divorce.

(3.) The respondent in this appeal raised a contention that the appeal itself is not maintainable under S.19(1) of the Family Courts Act in as much as the decree for divorce was passed on the consent of both the parties. If we hold that the decree as passed by the Family Court is a consent decree then there can be no doubt that this appeal is not maintainable. But if the facts indicate that the decree is not a consent decree then this appeal is certainly maintainable and the decree for divorce so passed by the Family Court has also to be set aside as it was an ex parte one without giving an opportunity to the appellant herein.