SARMISTHA ROY Vs. ARINDAM ROY

JUDGEMENT

(1.) The instant appeal is directed against an order No. 5 dated 29.5.2003 passed in MAT. Suit No. 125 of 2002 by the learned Additional District Judge, 4th Court, Barasat and in dismissing the joint application under section 13B of the Hindu Marriage Act. The learned Judge came to a finding that it was difficult to believe that the differences cropped up with regard to temperament, habits and tastes. Precisely, this is the ground for which the learned Judge came to an ultimate finding that the joint application should be dismissed.

(2.) In our considered opinion, the entire findings to that effect on the face of the record is erroneous. The language of section 13B of the Hindu Marriage Act clearly lays down that when both the parties of a marriage have been living separately for a period of one year or more and when they have not been able to live together and when they have mutually agreed that the marriage should be dissolved, they can come up with a joint application before the competent Court for dissolution of marriage by consent. The Court in that case must hear the parties and on enquiry it should be satisfied that there was a marriage solemnised between the parties and the statements to the aforesaid effect were correct, passed a decree of divorce on consent. The Court has got no duty to further examine whether any differences cropped up between the parties leading to the filing of the instant application or not. This is more so when both the parties presented a joint application for divorce and in course of the period for which the petition was kept pending there was no indication that one of the parties has withdrawn from such joint application. In short, we once again repeat that the reasons assigned for dismissal of the joint application cannot be a reason for dismissing the joint application.

(3.) It transpires from the record (certified copy of the evidence of the husband) which goes unchallenged that the marriage between the parties took place on June 20, 2001.