URMILA VARMA SHANKAR VARMA Vs. SHANKAR RICHHPAL VARMA

JUDGEMENT

(1.) Heard learned advocates appearing for the parties. This is an application filed by the wife invoking provisions of Section 24 of the Code of Civil Procedure, 1908 for transfer of a petition for divorce filed by the respondent-husband from the file of Family court as Bandra, Mumbai to the Court of learned civil Judge, Senior Division, Pune. Due to the efforts made by the advocates appearing for the parties an amicable settlement has been arrived at and consent terms are filed on record. The consent terms provide that both the parties will file appropriate application before the Family court at Mumbai for converting the petition filed by the respondent into a petition under section 13-B of the Hindu Marriage Act, 1955 for obtaining a decree of divorce by mutual consent. Adequate provision has been made in the consent terms for payment of maintenance to the minor children. The consent terms are filed considering the peculiar facts of this case. The allegation made in this application is that both the parties are tested HIV Positive and same is the case with the daughters. An application has been filed by the advocates appearing for the parties seeking certain directions to the family Court at Bandra for converting the pending petition into a petition for divorce by mutual consent. The said application is taken on record.

(2.) The parties have agreed that they want to dissolve the marriage by obtaining a decree for divorce under section 13-B of the hindu Marriage Act, 1955. My attention was invited to a decision of the Division Bench of this Court in the case of Rajashri Rajendra shasane Vs. Rajendra Baurao Shasane, reported in 1997 (1) Mh. L. J. 254 : [1996 (4) ALL MR 497]. The Division Bench has held that the provisions of sub-section 2 of section 13-B are mandatory and no discretion is given to the Court to convert a petition for seeking a divorce under section 13 on the ground of cruelty unless the said conversion is done by mutual consent of both the parties. The division Bench observed that it is also mandatory in view of the provision under section 23 (1) (bb) of the said Act of 1955 that before passing a decree under section 13-B, the Court has to satisfy itself that the consent has not been obtained by force, fraud or undue influence.

(3.) In the present case, in the consent terms, both the parties have recorded their desire to obtain a decree of divorce by mutual consent. I had kept the matter in the chamber on 10th april, 2007 when both the parties were present. Both the parties agreed before me that they have understood the contents of consent terms and they are agreeable to an order being passed on the basis of the consent terms. Both the parties have shown willingness to appear before the family Court and to apply for conversion of the pending petition of divorce into a petition under section 13-B of the Said Act of 1955. Learned counsel for the parties pointed out to me that considering the peculiar facts of the case which are narrated above, it will be unjust for both the parties if they are required to wait for a period of six months as provided in sub-section 2 of section 13-B of the said Act of 1955 before a decree for divorce is passed.