K I MOHANAN Vs. JEEJABAI

JUDGEMENT

(1.) An interesting question is sought to be raised by the appellant. That relates to the withdrawal of an application jointly filed by the spouses for divorce by mutual consent under S.13B of the Hindu Marriage Act. The appellant urges that once aa application by mutual consent under that section is filed, neither of the spouses is entitled to unilaterally withdraw such consent. It is also submitted that even assuming that one of the spouses withdraws the consent, the Court is not entitled to act on such withdrawal.

(2.) The facts of this case are only very few. The appellant and the respondent were married in June, 1980. An application for divorce by mutual consent was filed under S.13B of the Hindu Marriage Act on 23-6-1981 and the same was numbered as H.M.O.P. No. 50 of 1981. On 27-6-1981, that petition was posted to 4-1-1982 for reporting reconciliation, if any. I.A. No. 2187 of 1981 was filed by the respondent on 29-10-1981 stating that she had not consented to the divorce and had not read the petition before she signed the same. She, therefore, requested that she might be allowed to withdraw the petition. That petition was allowed on 31-10-1981. On the same day, the Additional Subordinate Judge passed the order under appeal to the effect that in view of the order on I.A.No. 2187 of 1981, the Original Petition itself was not maintainable. Hence the hearing was advanced and the petition was dismissed.

(3.) The appellant submits that the respondent should not have been allowed to withdraw the consent. In any case, the Court should not have acted on the withdrawal of the consent signified in the petition under S.13B of the Act. It is further submitted that even assuming that an application in the nature of I.A. No. 2187 of 1981 could have been entertained, it should not have been ordered without notice to the appellant and without conducting an enquiry into the circumstances under which that application was filed. It is also submitted that the application for divorce should not have been disposed of on 31-10-1981 without notice to the appellant or his counsel since the petition was posted for reporting reconciliation on 4-1-1982 and the same was advanced without notice to him.