SAKATTAR SINGH Vs. RAJ ALIAS RAJ RANI

JUDGEMENT

(1.) THIS appeal has been filed against the judgment delivered by a learned Single Judge, whereby the decree of the trial Court, dismissing the applicant's suit for a decree declaring the marriage null and void and, in the alternative, for judicial separation, has been affirmed on 29-8-1989, an application has been filed under Section 151 C. P. C. read with Section 13b of the Hindu Marriage Act. This application is signed by both the parties (husband and wife), stating that they have mutually agreed to dissolve the marriage as it is not possible for them to live together. The application is supported by an affidavit. Learned counsel admitted before us that the application has been signed by both the parties voluntarily. However, learned counsel for the respondent raised a preliminary objection that a petition under Section 13b of the Hindu Marriage Act does not lie in an appeal arising out of any petition filed under the Hindu Marriage Act. The contention is that the proceedings initiated by an application under Section 13b of the Act partake the nature of an original proceeding and can be filed only in the original Court, namely, the Court of the District Judge. This order shall dispose of the preliminary objection. Under different provisions of the Hindu Marriage Act, actions can be filed in the Court, either by the husband or by the wife, for restitution of conjugal rights (Section 9), for judicial separation (Section 10), for declaring a marriage null and void (Section 11), for avoiding marriage (Section 12) and for a decree of divorce (Section 13 ). By the Amending Act No. 68 of 1976, Section 13a and 13b have been added. Section 13b, which is relevant for the present purpose runs as follows :

(2.) THE view that we take in this regards, as aforesaid, further finds support from the fact that before a decree of dissolution of marriage can be passed in a petition under Section 13b of the Act, certain grounds have to be made out as contained in that provision. The parties have to make out (1) that they have been living separately for a period of one year or more; (2) that they have not been living together; and (3) that they have mutually agreed that the marriage should be dissolved. But this is not all. In terms of sub-Section (2) of Section 13b, the District Court, 'before whom such a petition is presented has to wait for a period of six months before the petition can be taken up for consideration. The Court has then to be satisfied, after hearing the parties and after making such inquiries as it thinks fit, that the marriage has been solemnized and that the averments in the petition are true. It is only on recording such satisfaction that the Court shall pass a decree of divorce declaring the marriage to be dissolved from the date of the decree Thus, sub-Section (2) of Section 13b casts a duty upon the Court, dealing with such a petition, to make such inquiries as may be necessary under the. circumstances of the case, to hear the parties and then to record satisfaction that the averments in the petition are true. A decree passed under Section 13b of the Act is undoubtedly appealable as any other decree passed under the Act by the District Court. Permitting such a petition under Section 13b of the Act to be filed in the appellate Court in an appeal against the decree passed by the District Court in a petition presented under the other provisions of the Act, would apparently mean depriving the party aggrieved by that decree, of the right of appeal which the Act otherwise provides. This is yet another reason why we 'feel that a petition under Section 13b of the Act should be made only before the District Court and not in the appeal arising out of the decree passed on a petition under the other provisions of the Act.

(3.) LEARNED counsel for the appellant cited certain cases decided by this Court wherein appeals filed against the decree passed under other provisions of the Act, petitions under Section 13b of the Act were entertained and on satisfaction of the requirements of that provision, a decree of divorce by mutual consent has been passed. Learned counsel, however, could not place any decision, which has considered the issue as to the forum where such a petition should be presented. Learned counsel, however, placed before us a decision of the Division Bench of the Calcutta High Court in Apurba v. Manashi, (AIR 1989 Cal. 115 ). That was an appeal by the husband against the wife from dismissal of his petition for dissolution of marriage on the ground of the wife's alleged mental disorder. In the appeal, a joint petition was filed praying for dissolution of the marriage on a decree of divorce on the terms and conditions contained in that application. The question arose whether such a course was permissible under the provisions of the Hindu Marriage Act. Division Bench expressly stated in para 9 of the judgment that it did not propose to determine the question if such an application under Section 13b of the Act can be presented in an appeal, as it was of opinion that it could record a compromise and decree dissolution of marriage under Order 23 Rule 3 Code of Civil Procedure which applies to proceedings under the Hindu Marriage Act by force of Section 21 thereof. It is in this context that the Calcutta High Court said that as in an appeal from a decree in a civil suit, so also in an appeal from a decree passed on a petition under Section 13 for dissolution of marriage, an application for dissolving such marriage by consent can be entertained, treated and decided as an application under Order 23, Rule 3, C. P. C. It has, therefore, been held that such an application may be entertained in appeal but can be allowed only if there already existed a ground for a decree of divorce under the provisions of Section 13 of the Act. We may, however, mention that a Division Beach of this Court in Ravishankar v. Sharda Vishwakarma, (1977 M. P. L. J. 784), dealt with the matter slightly differently. That was a case initiated on a petition under Section 13b of-the Act filed in the District Court. The parties examined themselves to say that the application was an outcome of their free will and that they wanted the marriage to be dissolved. The District Court was, however, of the opinion that unless the grounds as contemplated by Section 13 are made out, no decree for divorce can be passed. This Court, in appeal, held the view of the District Court to be erroneous and that on a plain construction of Section 13b, a decree has to be passed, if the conditions laid down therein exist It was specifically said that Section 13b does not require the parties seeking a divorce by mutual consent to prove anything in addition to that laid down in Section 13b. This indicates that the Division Bench of this Court was of the view that "the proceedings under Section 13b of the Act are substantive and independent proceedings in themselves and have to be treated and decided on their own premises" and only in accordance with Section 13b. This is a strong indication that proceedings under Section 13b are proceedings independent of any other proceeding under the Act and have to be initiated and dealt with de hors and independent of any other proceeding, including an appeal against the decree passed under any other provision of the Act. The Calcutta decision therefore, proceeds on an entirely different line and is not an authority for the proposition that a petition under Section 13b of the Act can be filed and entertained in an appeal arising out of a decree passed by the Court in proceedings under other provisions of the Act.