SUBHAJYATI MAJUMDAR Vs. ARUNIMA MAJUMDAR

JUDGEMENT

(1.) This appeal is directed against the judgment/order No.4 dated 22.3.90 passed by the District Judge, 24-Parganas at Alipore in Matrimonial Suit No.724 of 1989 and Decree No.1051 of 1990 signed on April 2, 1990 dismissing the joint petition under section 13B of the Hindu Marriage Act, 1955 (for short the said Act hereafter). The husband, the petitioner No.1, married co-plaintiff petitioner No. 2 on January 16, 1986 according to the Hindu sacromental rites and ceremonies at the residence of the father of the petitioner No. 2 at premises No.25/A, H.B. Town, P.O. Sodepore, P.S. Khardah, District 24-Parganas (North). After the marriage, the petitioners found themselves temperamentally opposed to each other and there was lack of mental adjustment between them. In other words, the mental incompatibility started growing and became so pronounced that the petitioners were not in a position to live together. Since June 21, 1986 the petitioners have been living separately and they have not been able to live together. The petitioner No.1 resides at his father's residence at Tollygunge and the petitioner No.2 resides at her father's residence at Sodepore. Both the petitioners have also mutually decided to seek divorce on mutual consent and accordingly, they filed a joint application for mutual divorce. The joint petitioner further discloses that the parties have no claim against each other including maintenance and mutual consent of divorce of the petitioners has not been obtained by force, fraud or undue influence. Both the plaintiff and the co-plaintiff i.e. the petitioner No.1 and the petitioner No.2 affirmed affidavits respectively in support of the case for mutual divorce. After the expiration of the six months, the matter came up before the court below on March 12, 1990 when the co-plaintiff i.e. the petitioner No.2 was not present, but the learned counsel appearing for the parties submitted for disposal of the matter in the absence of the petitioner No.2 i.e. wife. The court below, inter alia, recorded that it is required to be ascertained as to whether the petitioner No. 2 has given consent to the divorce by mutual consent. The court below further recorded that it is necessary that an enquiry as to whether the marriage has been broken down or not should be made in presence of petitioner No. 2 in Court and both parties are to attend the court on 15th March, 1990.

(2.) By petition dated March 15, 1990 the petitioner No. 1 claimed that the present divorce petition should be allowed. It is also claimed by the learned Advocate on behalf of the petitioner No.1 that mutual divorce should be granted in terms of section 13B of the said Act. The trial court, after effective examination of the issue involves, was of the opinion that the decision reported in AIR 1968 Cal. 48 does not apply to the facts and circumstances of the present case. In the said case, on the final date of hearing, the appellant-wife applied for divorce by mutual consent under the Special Marriage Act, 1954 for being allowed to give consent by affidavit. This was decided by the trial court, but was allowed by the High Court.

(3.) The court below held that final hearing has to be made only on motion by both the parties and the court shall have the power to pass decree of divorce only after hearing the parties. The word "parties" means both the parties and not the one only. It is also recorded that the plaintiff did not care to say why the petitioner No.2 was not present. Her absence indicates that she is not willing to proceed with the application for divorce when no cause for her non-appearance could even be indicated by the petitioner No.1. Accordingly, the suit is dismissed. Pursuant to the order passed by the court the respondent was duly served with a notice to the effect that the matter would be heard. As the matter was placed for hearing and no one present at the time of hearing on her behalf, we shall now proceed with the hearing of the matter. Mr. G. A. Wilson-de-Rose, learned Advocate appeared for the appellant in the absence of the respondent.