SUKANT BHATTACHARYA Vs. ISHITA BHATTACHARYA (CHAKRABORTY)

JUDGEMENT

(1.) This appeal under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 has been filed arising out of the judgment dated 15.10.2016 passed by the II Additional Principal Judge, Family Court, Jabalpur in Case No. 96-A/2015. By the said order the suit jointly filed by the parties seeking decree of divorce by mutual consent has been dismissed because the Party No.2 has not appeared to give consent on fixing the date after six months.

(2.) The litigation between the parties is having chequered history and they have filed number of cases against each other of civil as well of criminal nature. Therefore, relevant facts of this case are required to be taken note of. It is not disputed that the appellant-husband and the respondent-wife jointly filed a suit on 19.3.2015 seeking decree of divorce by mutual consent interalia contending that their marriage was solemnized on 28.5.2004 to which a reception was organized on 1st June, 2004. From their wedlock, a daughter namely Sumedha @ Mili was born on 24.11.2006. It is said that due to temperamental differences and incompatible nature, taste, habits, ideas and thoughts both the parties could not live together as husband and wife. It is further said that they are living separately from each other since 22nd May, 2008 and now they have reached at a stage of non-reconciliation. There is no cohabitation between them since then, therefore, on 19.3.2015 they jointly filed a petition under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act of 1955') for divorce by mutual consent on the terms mentioned in para-6 of the said petition. They consented that on withdrawal of consent by any of the party or in the event of breach of any of the terms of consent, the aggrieved party would be at liberty to take recourse of law. It is pleaded that the petition for divorce by mutual consent has been filed out of the free will by both the parties with their own signatures alongwith the affidavits, therefore, the prayer was made to decree the suit.

(3.) On filing of the said petition, the court directed for the conciliation on the same day i.e. 19.3.2015. On failure of the reconciliation proceedings, the court recorded the statements of both the parties and fixed the case for second motion on 21.9.2015. On the said date the appellant-husband appeared in the court but the respondent-wife did not appear and sought time by counsel which was allowed fixing the next date 14.12.2015. Similar was the position on 14.12.2015, 28.3.2016, 9.5.2016 and on 20.6.2016. On 20.6.2016, the case was fixed for 19.9.2016 for setting up of the second motion. But, because Party No.2 wife was not appearing since last one year, however, prior to 19.9.2016, appellant-husband filed an application for urgent hearing alongwith an application under Section 151 of CPC praying for temporary physical custody of the child in view of the violation of mutually agreed terms of the consent petition with a further prayer to grant any other relief, order or direction as the court deems fit. Thereafter, on 19.8.2016, another application under Section 151 of CPC was filed by the appellant-husband praying for the relief that looking to the facts and circumstances it is conclusively evident that the respondent-wife has resorted to complete falsehood and made attempt to play fraud and has also given an open threat to commit cognizable offence, therefore, to prevent any further abuse of the process of the Court and to further prevent multiplicity of litigation the Court may be pleased to pass appropriate orders or directions to do the complete justice in the matter. The Court has issued the notice of applications filed u/s 151 CPC filed by the appellanthusband to the wife, which were served on her and while taking into consideration and deciding those applications, the court dismissed the petition seeking divorce by mutual consent by the impugned judgment, which gave rise to file this appeal by the husband.