NAMDEO BABURAO PATIL Vs. SHOBHA NAMDEO PATIL

JUDGEMENT

(1.) The appellant married the respondent according to vedic rites on May 8, 1977 at Kolhapur and the parties reside together at Kolhapur and Rendal. The appellant filed Hindu Marriage Petition No. 102 of 1982 in the Court of the Extra Assistant Judge, Kolhapur under section 9 of the Hindu Marriage Act (hereinafter referred to as 'the Act') seeking the relief of conjugal rights. During the pendency of the petition the parties filed a joint application at Exhibit 2 stating that they are residing separately for last over five years and it is not possible for them to lead matrimonial life. Parties also stated that in spite of the efforts made to reside together they are unable to reconcile the differences and therefore the best course is to dissolve the marriage. The appellant is a graduate, while the respondent has passed matriculation examination and both of them of their free will and consent requested that trial Judge to dissolve the marriage in accordance with provisions of Sec. 13(b) of the Act. The learned trial Judge examined both the parties and found that the consent was of free volition and there was no collusion between the parties. Inspite of this finding the trial Judge proceeded to dismiss the petition on a technical ground that the petition was lodged under Sec. 9 of the Act and that was never withdrawn and therefore unless the parties filed separate petition under Sec. 13(b) of the Act, the relief, of divorce cannot be granted. The order of the trial Judge is under challenge.

(2.) In my Judgment, the trial Judge has taken very hyper technical view of the matter. It is undoubtedly true that initially the appellant presented the petition under section 9 of the Act, but during pendency of the petition both the parties filed a joint application requesting for the dissolution of the marriage under Sec. 13(b) of the Act. The trial Judge should not have refused the relief after being satisfied that the parties are seeking divorce by consent and without any collusion on the mere ground that the petition initially filed was under Sec. 9 of the Act. The trial Judge should have treated the application at Exhibit 2 jointly filed by the parties as a separate petition and ought to have granted the relief. In my judgment the order of dismissal of the petition, therefore, cannot be sustained.

(3.) Accordingly, appeal, is allowed and the judgment and order dated Jan. 21, 1984 passed by the Extra Assistant Judge, Kolhapur, is set aside and it is declared that the marriage of the appellant and the respondent stands dissolved by decree of divorce in accordance with Sec. 13(b) of the Hindu Marriage Act. In the circumstances of the case, there will be no order as to costs. Appeal allowed.