JITENDRA BATHAM Vs. HEMVATI BAI

JUDGEMENT

(1.) The instant first appeal preferred u/S. 28- A of The Hindu Marriage Act assails the order dated 2/2/16 of the court below by which an application under Order 23 Rule 1 r/w Section 151 of CPC filed by the respondent-wife seeking withdrawal of a consent alleged by her to be obtained by fraud, has been allowed and the petition for divorce by consent u/S. of the Hindu Marriage Act preferred jointly by the rival parties, has been dismissed.

(2.) Learned counsel for the appellant-husband has placed strong reliance on the decision of the Apex Court in the case of Ashok Hurra Vs. Rupa Ashok Hurrarupa Bipin Zaveri reported in AIR 1997 SC 1266 and a single bench decision of the Rajasthan High Court at Jodhpur passed in S.B. Civil Misc. Appeal No. 1250/2008 (Anil Khatwani Vs. Nistha Khatwani) on 10/5/12. In the said two decisions, it is submitted by learned counsel for the petitioner that a unilateral withdrawal by a wife of her consent in a petition for divorce by consent, was ignored and the petition for divorce by consent was allowed.

(3.) A bare perusal of the judgment of Apex Court in the case of Anil Khatwani (supra) reflects that in the peculiar facts and circumstances attending that case where the marriage in question had been irretrievably broken down and there was no hope of settlement and the rival parties were staying away from each other since long, the Apex Court without entering into legality of justification of ignoring a unilateral withdrawal of consent in a petition for divorce by consent, set-aside the order of the court below and annulled the marriage u/S. 13-B of the Hindu Marriage Act by exercising it's extraordinary and plenary powers under Article 142 of the Constitution of India. This fact is evident from a bare perusal of paragraph 21 of the said judgment which is reproduced below for ready reference and convenience:-