NITIN RAMNAIK LAL JHAVERI Vs. PADMINI NITIN JHAVERI

JUDGEMENT

(1.) This is an appeal under section 28 of the Hindu Marriage Act, filed by the husband against the dismissal of the application under section 13-B of the said Act for divorce by mutual consent. The said application was numbered as M. J. Petition No. 605 of 1982 of the file of the City Civil Court, Bombay.

(2.) The marriage between the appellant Nitin and the respondent Padmini took place on 27-1-1980. It appears that due to Incompatibility of temperament and differences of opinion disputes arose between the parties and as such it was not possible for them to reside together. They started residing separately from 27th June, 1980. On 29-7-1982 Nitin and Padmini filed a joint application under section 13-B of the Hindu Marriage Act for a divorce by mutual consent. In that application they both stated as to when the marriage took place and since when they have been residing separately. There is further statement in that application that they were not able to live together since 27-6-1980 on account of incompatibility of temperament and differences of opinion. The application further states that they have mutually agreed that the marriage should be dissolved. The learned Judge of the City Civil Court fixed the next date of hearing as 31-1-1983. It appears that the Advocate who was appearing for Nitin and Padmini informed both the parties about this date. The husband Nitin appeared in that Court, but the wife Padmini did not appear. The matter was adjourned from time to time for the appearance of the wife. A formal notice of motion, being Notice of motion No. 3795 of 1983 was taken out by the husband. This notice motion was also served on the wife, but she did not attend. The husband has filed an affidavit in support of the motion.

(3.) The learned Judge of the City Civil Court, however, dismissed the petition on the ground that any party to the joint petition can reconsider the matter within a period of six months and that the consent of the parties which would be there at the time of the Institution of the petition must subsist till the decree of divorce Is passed. In my opinion, this view of the learned Judge does not appear to be in consonance with the decision of this Court in the case of Jayashree Ramesh Vs. Ramesh Bhikaji, 1984 Mah L.J 308 . The relevant head-note reads as follows : "When a joint petition for divorce by mutual consent under section 13-B of the Hindu Marriage Act Is filed, fulfilling all the requirements as laid down in the section, it is not open at a later stage for either party to say that he or she now did want the divorce. The fact that at a later stage either party does not want a divorce is irrelevant. What is material is as whether the requirements as provided in section 13-B were existing when the petition was filed, Once the requirements are proved it will be necessary for the Court to grant a decree for divorce." Thus, in the inquiry contemplated by section 13' B(2), it will not be open to a party to withdraw the consent. Similarly, it would be irrelevant whether one of the parties remains absent during such inquiry. In view of this legal position, the appeal deserves to be allowed.