GOUTAM BASU Vs. NINA BASU

JUDGEMENT

(1.) This revisional application is directed against orders dated 15th November 1989 and 29th November 1989 passed by the learned Additional District Judge, 2nd Court at Alipore in Matrimonial Suit No. 13 of 1989.

(2.) The parties to this application filed a joint petition on 16-5-88 praying for divorce by mutual consent under Section 13B of the Hindu Marriage Act. On 13-10-88 the petitioner husband filed an application stating that he had signed the petition seeking divorce by mutual consent with his wife without understanding the contents of the particular petition and the legal effect of the averments made therein He sought for permission to withdraw the consent indicated in the petition for divorce. The opposite party-wife alleged that the consent was voluntary and the same could not be withdrawn. Subsequently the husband petitioner filed another application stating that the statutory requirements had not been fulfilled as in fact the petitioner did not live separately for a period of one year before the filing of the petition. It was contended that they lived together as hasband and wife at his residence and brought on a diary and record maintained by the wife with regard to accounts of water supply to their residence. He also stated that the wife in his company had visited Puri and stayed in a hotel. During this period it is claimed that they had enjoyed their matrimonial life. Wife opposed this petition and denied the allegations made. The learned Judge gave opportunity to both the parties to cross-examine each other. But at the time of hearing the parties submitted that the petition may be disposed of on the basis of affidavits by the parties. The petitioner asked the court to issue summons for appearance of witnesses but by order dated 10-11-89 the learned Judge rejected the prayer.

(3.) The learned Judge after going through the records and considering the various decisions referred to by the Bar to him concluded that consent once given in a petition filed under Section 13B of the Hindu Marriage Act can not be withdrawn unilaterally. He also held that it is imperative for the court to enquire as to whether the condition laid down in the particular provision have been duly complied with while filing the petition. The learned Judge on the facts as alleged by the petitioner considered in appropriate to give an opportunity to the petitioner husband to establish his contention by adducing necessary evidence and for this particular reason the learned Judge did not make any final observation with regard to the statements made by the petitioner in connection with the allegation that the conditions contemplated by Section 13B was not complied with.