ASHOK GOVINDRAM HURRA Vs. RUPA ASHOK HURRA

JUDGEMENT

(1.) This Civil Appeal is directed against the judgment and decree of the City Civil Court at Ahmedabad in Hindu Marriage Petition No. 248 of 1984 which was filed jointly by the appellant-husband and respondent-wife for divorce by mutual consent under S.13B of the Hindu Marriage Act, 1955 (hereinafter referred to as the said "Act"). By impugned judgment and decree dated 17th October, 1986, the learned trial Judge has dismissed the petition for divorce by mutual consent. The appellant husband is aggrieved by such judgment and decree and hence he has approached this Court by way of this Civil Appeal.

(2.) At this stage it would be necessary to briefly state the facts which led to filing of Hindu Marriage Petition No. 248 of 1984 which are as under : (i) The marriage between the appellant-husband and the respondent-wife was solemnised on 3rd December, 1970 according to Hindu rites at Ahmedabad and thereafter the husband and wife resided together at the residence of the husband at Ahmedabad. It was a love marriage by the parties to the marriage, which developed during their college days when they accepted each other to be a good match for becoming the life partner which love relation ultimately culminated into solemnisation of Hindu marriage. (ii) After some time (pleading in this regard is not very clear) but within a span of four to five years, there were serious differences of opinion between the parties and as averred in the memo of petition for divorce by mutual consent, it was not possible for them to stay together and so since 30th June, 1983 they have started residing separately. It is factually a long period of 13 years after marriage but then during course of reconciliation proceeding it was disclosed that within five years of marriage actually serious differences of opinion arose between the husband and the wife. (iii) In the plaint of the joint petition for divorce by mutual consent both the parties further averred that since 30th June, 1983 till they filed the petition on 21st August, 1984, they had not lived together as husband and wife and there was no cohabitation between the parties. Both of them being highly educated and intelligent and independently manning their own affairs and businesses, they realised that their marriage has failed and therefore, they have decided to seek a dissolution of the marriage of their own free will, without any pressure or undue influence from any quarter. They also averred in the petition that all the matters regarding ornaments, clothes and other movables have been settled between them and wife has renounced her right to claim maintenance and that they have simply sought a decree of dissolution of the marriage by mutual consent. (iv) Since the Hindu Marriage Petition was filed on 21st August, 1984, in view of the provisions of S.13B(2), at the expiry of period of six months, motion of both the parties was required to be made but on 4th of April, 1985, the appellanthusband alone moved an application at Exhibit 4 for taking the Hindu Marriage Petition on Board and to proceed to decide the same and the matter was accordingly listed before the City Civil Judge. On 15th of April, 1985, the hearing of the petition commenced and the same was adjourned at the joint application of the Advocates of the husband and wife. Thereafter on 24th April, 1985 and 26th June, 1985, the matter was notified before the Court, but, due to disturbances in the City of Ahmedabad and the sudden strike of the staff, it was adjourned to 6th of August, 1985. On 6th August, 1985, wife engaged another Advocate who filed his Vakalat Patra and at the request of the wife the hearing was adjourned. On 9th September, 1985, rojkam of the Court reads that at the oral request, the matter was adjourned to 16th September, 1985 and on that date attempts were made by the learned trial Judge to bring about reconciliation between the parties in his Chamber. It appears that with the change in allocation of work, the matter was assigned to another Judge and on 30th September, 1985, he also once again made attempts in his Chamber to bring about reconciliation between the husband and the wife, but the same was not possible and therefore, it was adjourned to 10th of October, 1985. On 10th of October, 1985, at Exhibit 7, a joint application was tendered by the parties for adjournment on the ground that attempts to bringing about compromise between the parties were afoot and therefore, hearing should be adjourned. On 30th October, 1985, once again joint oral request was made on the very ground for adjournment. On 9th December, 1985 application at Exhibit 8 was tendered jointly by both the parties for adjournment on the ground that attempts to bringing about compromise were in progress and therefore, the matter should be adjourned. On 16th December, 1985 and 10th January, 1986 hearing was once again adjourned at the request of the Advocate of the wife. It appears that thereafter either at the request of the party, namely, wife and once at the joint request of the Advocates of the parties, the hearing was adjourned from time to time and in all such applications, where joint request was made it was stated that talks of compromise/settlement between the parties were afoot and therefore, hearing of the petition should be adjourned. (v) It will not be out of place to mention that the appellant-husband remarried with one Sonia on 18th August, 1985 and that a male child named Prasad was born out of the said wedlock. (vi) On 27th March, 1986, the wife gave an application at Exhibit 11, wherein in Paras 2 and 3 following averments were made :

(3.) On aforesaid fact situation, it becomes clear that all the three ingredients of S.13B(1) were satisfied when a joint petition for divorce by mutual consent was filed by the husband and the wife, namely, (i) they have been separately residing for a period of one year or more; (ii) they have not been able to live together; and (iii) they have mutually agreed that the marriage should be dissolved. From the provisions of S.13B(2) which are quoted hereafter, it becomes clear that after the expiry of period of six months from the date of the presentation of the petition for divorce by mutual consent, a motion is required to be made by both the parties to the Court for grant of divorce by mutual consent. In the present case, since the petition was filed admittedly on 24th of August, 1984 the appellant-husband did move an application on 4th of April, 1985 for taking the matter on Board and to proceed to decide the same as it was a petition for divorce by mutual consent between the parties. This Application at Exhibit 4 is not a joint motion, but motion by the husband.