PRABHALA SUBBALAKSHMI Vs. PRABHALA ANANTA VENKATA SUBRAHMANYESWARA DAIVE KRIPANANDA BALA KRISHNA SASTRY

JUDGEMENT

(1.) Appellant is the wife of the respondent. Together they filed a petition for dissolution of their marriage under section 13-B (1) of the Hindu Marriage Act. In the petition they averred that they have been living separately for a period of more than one year; that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved. This petition was filed on 93-1984. It was adjourned to 10-9-1984, i.e , beyond six months, as required by sub-section (2). On that day both the parties were not present, but their advocate was present who requested for an adjournment. It is not necessary to mention as to what happend on the subsequent dates of adjournment. Suffice it to say that on the advocate reporting no instructions on behalf of the wife (2nd petitioner in the court below), notice was directed to her, in response to which she appeared and filed an affidavit on 15-2-1985 stating that she had never agreed for divorce; that her signature was obtained by fraud and coercion; that she is not willing for the divorce, and that the petition for grant of divorce be dismissed. The matter was adjourned to another date. On that date the wife did not appear, nor did she lead any evidence in support of her allegations of fraud and coercion. The husband, examined himself, marked some documents and pressed for grant of a decree of divorce. The court below framed the question arising before it in the following words :

(2.) It is contended by the learned counsel for the appellant (wife) that once the wife (second petitioner in the joint petition filed under sub-section (1) of section 13-B) expresses her disagreement to the grant of a consent decree of divorce, the court has no power to pass a decree of divorce under section 13-B. Placing reliance upon the words "on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1)", occurring at the beginning of sub-section (2), counsel submitted that not only should both the parties file a joint petition, but six months later they must move in the matter together, and that in such a situation alone the court gets the jurisdiction to grant a decree of divorce of course after being satisfied as to the matters specified in sub-sections (1) and (2). In this case, it is contended, the wife never made a motion' after the expiry of six months. Indeed, she expressly went back upon her consent. In such a case, it is not relevant, nor is it open to the court to make an enquiry into the reasons for one party going back upon the consent, or for his/her refusal to consent to a decree for divorce. If at any time, before the decree is granted, either of the parties goes back upon the consent, the decree of divorce cannot be granted under section 13-B.

(3.) On the other hand, the learned counsel for the respondent (husband) submitted that unless the petition filed by both the parties together is withdrawn within six months of its presentation by both the parties again acting together, it cannot be withdrawn thereafter, and that it is not open to one of the parties to withdraw the petition. It is submitted that once the petition is not withdrawn (by both parties), the court gets the jurisdiction to grant a decree of divorce, notwithstanding the fact that one of the parties expresses his/her disagreement to the grant of divorce after the expiry of six months. Unless the court is satisfied that the party resiling from the earlier consent has valid reasons for doing so, the court has jurisdiction to pass a decree of divorce, notwithstanding the unwillingness of one of the parties at that stage. Indeed, the learned counsel wanted us to go into the correctness or otherwise of the allegations made by the wife, with a view to satisfy ourselves that the wife had indeed signed the petition voluntarily, and that she had no valid or justifiable reasons for resiling from the willingness and consent expressed therein. Both the parties have brought to our notice certain decisions relevant on this aspect. Section 13-B is in two sub-secandtions. It reads thus :