DHANNIBAI Vs. RAMDAS

JUDGEMENT

(1.) The facts which have given rise to this revision briefly stated are, that non-applicant Ramdas filed a petition on 13th Feb., 1980 for divorce against the applicant Dhannibai under the Hindu Marriage Act, 1915, in the Court of District judge, Betul, on the ground of cruelty. In the said proceedings, the parties filed an application on 26th Sept., 1980, presumably under section 13-B of the said Act, for divorce by mutual consent. This application was withdrawn by the wife on 30th Sept., 1980. The wife's allegation was that she was forced to file that application. The District Judge could not act upon the application under Sec. 13-B. He, however, treated it as an application for recording a compromise under Order 23, Rule 3 of the Code of Civil Procedure. He enquired into the allegation whether the consent of the wife was obtained by the threat or force. After coming to the conclusion that the application was made by her free consent, the District judge passed a decree in terms of the compromise. It is against this order of the District judge that the present revision has been filed.

(2.) A perusal of section 13-B of the Hindu Marriage Act goes to show that when an application for divorce my mutual consent is made, the Court cannot straightaway pass a decree on the application. A motion by both the parties for passing of a decree has to be made, therefore, not earlier than six months and not later than eighteen months after the date of such an application to enable to Court be pass a decree of divorce on the ground of mutual consent. Even after such a motion, if the application is withdrawn there can be no decree. In the instant case, the application was withdrawn, within four days. There could, therefore, be no decree whatsover under section 13-B. The learned District judge was entirely wrong in applying the provisions of Order 23 of the Code of Civil Procedure in face of the special provision in section 13-B for obtaining a decree on the ground of mutual consent. A Hindu marriage cannot be dissolved by consent or compromise except to the extent expressly permitted by statute, i.e., section 13-B. The whole enquiry made by the District judge whether the application dated 26th Sept., 1980 was made by the wife without thereafter force was entirly without jurisdiction. That decision on the application that there was a valid compromise under Order 23, Rule 3 of the Code which could support a decree in divorce is wholly erroneous and it is a matter of some regret to see a District judge falling into such an error.

(3.) Learned counsel for the non-applicant, however, submits that as there was a decree passed by the District judge, the applicant should have filed an appeal under section 28 of the Hindu Marriage Act and as no appeal was the decree became final and cannot now be interfered with. The answer to this argument is that the decree in the instant case is passed under Order 23 Rule 3 of the Code. If the order made by the District judge holding that there was a compromise between the parties which could support a decree is held to he erroneous in this revision, the decree being consequential will automatically vanish.