K.K. ANIRUDHAN Vs. T. PRASANNA KUMARI

JUDGEMENT

(1.) A husband and wife sought for a decree of divorce dissolving their marriage as per the provisions of Section 13 B of the of Hindu Marriage Act, 1955 (for short 'the Act'). Both of them together filed a petition on 16 -7 -1986 on the ground that they have been living separately for more than one year and that they have not been able to live together and further that they have mutually agreed to have their marriage dissolved. The court below posted the petition to 24 -7 -1987 (skipping the period of six months which is envisaged in the Section). On that day the husband was present in court but the wife was absent. Hence the lower court dismissed the petition for default. Later, an interlocutory application was filed by the husband praying for restoration of the petition Learned Sub Judge dismissed the interlocutory application by the impugned order. This Civil Revision is at the instance of the husband. According to the learned Sub Judge, Section 13 B of the Act makes it clear that no court shall conduct such enquiry before the expiry of six months from the date of presentation of the petition, and it further provides that such enquiry shall be made not later than eighteen months. In the opinion of the Sub Judge, the period of eighteen months provided in the sub -section "does not mean that the court shall not voter into the merit of the petition on any date prior to it and after the expiry of six months". The lower court took the view that it is impossible to conduct the enquiry contemplated in sub -section (2) if one of the spouses is absent, even though the personal presence of the parties is not a condition precedent in holding the enquiry.

(2.) LEARNED counsel contended that it is not permissible for one of the parties to a petition under Section 13B of the Act to withdraw from the petition jointly filed as the scope of enquiry is confined to three aspects: Whether the spouses have been living separately for more than one year, whether they have not been able to five together and whether they have mutually agreed that the marriage should be dissolved. Section 13B of the Act reads as follows:

(3.) SUB -section (2) envisages two stages in the prosecution of the petition filed under sub -section (1). The first stage ends with the expiry of six months from the date of filing the petition. The second stage commences thereafter and ends with the expiry of eighteen month's from the date of filing the petition. No party can do anything during the first period. The petition remains in limbo or torpidity during that period. On the expiry of the first period, the crucial stage sets in. During the second stage, the petition can he resuscitated into life. But this can be done only "on the motion of both the parties". Such a motion need not necessarily be made jointly by both parties But there must be motion from both sides. In other words, a unilateral motion is incapable of galvanizing the petition from dormancy. If any motion is made by the spouses either together or separately the court can conduct the enquiry. It is not necessary that the enquiry should be concluded before the expiry of eighteen months from the date of filing the petition. No time limit is fixed for final disposal of the petition. But the motion envisaged in sub -section (2) has to be made before the expiry of the eighteen months period. The words "not earlier than six months after the date of presentation of petition" are sufficient to indicate that nothing can be done by the court during the first stage. Similarly the words "and not later than eighteen months" clearly point to the legislative intent that unless the motion envisaged in the sub -section is made before the expiry of the period in the second stage nothing can be done on the petition. If the parties fail to make the motion till the expiry of the period of eighteen months its logical consequence is the lapsing of the petition. It may be that the parties can file a fresh petition under Section 13B (1) of the Act since there can be no bar of res judicata or estoppel.