PRANAB HAZRA Vs. RATNA HAZRA

JUDGEMENT

(1.) The short question, which has been urged before us, on behalf of the contesting parties to a proceeding for divorce, is whether in connection with an appeal, arising out of a matrimonial suit, instituted by the husband on the grounds of cruelty and desertion, which stool dismissed, an application for divorce by mutual consent is maintainable before the appellate Court. On behalf of the appellant it has been emphatically contended that since the parties have admittedly been residing separately for a period of more than one year and since there has been a mutual agreement that the marriage should be dissolved, the Appeal Court is under an obligation to grant dissolution on such application, on fulfilment of the conditions laid down in sub-section (2) op section 13B of the Hindu Marriage Act. It is to be noted that the application before this Court is a joint application and has been preferred by both the husband and the wife.

(2.) Judgment of the Trial Court under appeal before this Court reveal,. (a) that a previous matrimonial suit, instituted by the husband, being matrimonial suit No. 25 of 1978, stood dismissed on contest on 14.11.81 (b) since 4th of March, 1976 to 31st of August, 1976 only, the couple resided together and thereafter desertion commenced (c) the attempted restitution in 1985 proved abortive though the suit stood dismissed as above. (d) Title suit No, 39 of 1983 ended in a decree for maintenance in favour of the wife on 17.9.1984.

(3.) In the instant application for divorce by mutual consent, the wife has proposed to abandon all claims on account of consolidated permanent monthly alimony and to the properties vacated at the time of marriage in lieu of a payment of Its. 30,000/- by the husband to the wife. .