SAU. SONALI Vs. YESHWANT

JUDGEMENT

(1.) BY this appeal, the appellant -original applicant No. 2 is challenging the judgment and order dated 15.3.2013 passed by the learned Judge, Family Court at Akola. By the impugned judgment and order, the petition bearing No. F -31/2012 jointly filed by the appellant and the respondent under Section 13 -B of the Hindu Marriage Act, 1955 (Act of 1955 for short) has been allowed thereby dissolving the marriage between the parties by a decree of divorce.

(2.) THE brief facts are that the appellant and the respondent were married on 12.6.2005 at Nanded. The parties were blessed with two sons namely, Sarvadnya, aged about 5 years and Bhushan, aged about 3 years. According to the appellant, the respondent subjected her to mental and physical cruelty. However, the appellant continued to cohabit with the respondent hoping against hope that over a period of time, the behaviour of the respondent would improve. It appears that the matrimonial relationship between the parties soared which ultimately led the parties to approach the Family Court, under Section 13 -B of the said Act, for dissolution of marriage. That application being petition No. F -31/2012 was jointly filed by the appellant and the respondent. It appears that the learned Judge of the Family Court verified the contents of the petition from the parties and they admitted the contents to be correct and it is so recorded vide order dated 11.9.2012 below Exh. 1. The matter was then adjourned for further consideration. It further appears that the learned Judge of the Family Court recorded the statements of the appellant and the respondent on oath on 15.3.2013. The parties admitted that they were married on 12.6.2005 at Nanded as per the customary rites prevailing in their community. Both of them had resided as husband and wife at Akola and had two issues from the said wedlock. They further stated that they have been staying separately since 13.3.2011 and on account of differences of opinion and incompatibility of temperament, were unable to continue as husband and wife and had decided to seek divorce by consent voluntarily. On the same day, the learned Judge of the Family Court passed the impugned judgment thereby allowing the petition. The appellant -wife has now filed this appeal alleging that the respondent had practiced fraud and had obtained the decree of divorce by mutual consent. It is contended that the appellant is educated up to 10th Standard and cannot read, write or understand English. On account of false assurance and misrepresentation of the respondent, the said petition came to be filed before the Family Court and the consent is not free and is tainted with fraud. She has, therefore, prayed for setting aside the impugned judgment and decree.

(3.) IT is submitted on behalf of the appellant that a petition under Section 13 -B of the said Act presupposes 'consent', which is free from any misrepresentation, fraud or inducement. It is submitted that otherwise it would be no consent in the eye of law. It is submitted that the appellant is educated up to 10th Standard and does not understand English. The learned counsel has submitted that her signature was obtained on the petition for divorce by playing fraud and misleading the appellant. The learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in Balwinder Kaur. v. Hardeep Singh, reported in : 1997 CJ (SC) 131 and decision of this court in Sau. Sushama Pramod Taksande. v. Pramod Ramaji Taksande, reported in : AIR 2009 Bombay 111. It is submitted that unless and until the court finds and records its satisfaction in terms of the requirements of Section 23(1)(bb) of the said Act, no decree of divorce, based on consent can be passed. He, therefore, submitted that the impugned judgment and decree needs to be set aside.