PRALAY KUMAR BOSE Vs. SHYAMA BOSE

JUDGEMENT

(1.) This is an appeal by the husband against a decree of divorce on mutual consent passed on July 30,1987 by the District Judge, 24 Pgs. (S), Alipore in Matrimonial Suit No. 629 of 1986 in spite of a subsequent unwillingness expressed prior to the passing of a decree.

(2.) The age long concept of a Hindu Marriage being an unbreakable marital tie of the so-called life partners is almost outdated by now. The dissolution of marriage by a decree of divorce has been made possible within the ambit of law at the instance of either of the unwilling or aggrieved spouse but only on proof of certain established allegation being statutory ground as enumerated under Section 13 of the Hindu Marriage Act, 1955. The said Act did not earlier contemplate a situation when both the spouses (husband and wife) choose to go for dissolution of marriage by a decree of divorce on mutual consent but of the late, in the year 1976 this probability necessitated for an enactment and accordingly, Section 13-B was introduced in the said Act by way of amendment being Marriage Laws (Amendment) Act, 1976. However in the wisdom of the legislature it was probably considered proper in keeping with the sanctity of solemnization of a Hindu Marriage that there should be abundant precaution against a possible haste and emotions and accordingly, certain checks and balances with time factor were provided in the relevant enactment itself. It was only on the fulfilment and compliance of certain formalities and on expiry of certain statutory periods provided that it was possible to grant a decree of divorce on mutual consent by a Court of Law. This would be gathered from the very plaint reading of the Section 13-B of the Act which may be placed below : Section 13B: Divorce by mutual consent-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(3.) At this juncture, we may state the factual aspect of the instant case which can be, of course, but in a short compass. A joint petition dated September 24,1986 was filed by the parties praying for dissolution of marriage by a decree of divorce under Section 13-B of the Hindu Marriage Act, 1955, which was registered as Matrimonial Suit No. 629 of 1986. It was contended therein that they being Hindus were married under Hindu rites on May 19, 1984 but they have been living separately since August 13,1985 for a continuous period of more than one year at their respective addresses and accordingly, they have mutually agreed that the marriage subsisting between them should be dissolved by a decree of divorce. Subsequently, on July 10,1987 the appellant-husband filed a petition before the Trial Judge that he was no more willing to have the marriage dissolved and accordingly, he would not consent to such dissolution of the marriage. This petition was, however, objected to by the respondent-wife, who put in a written objection before the Trial Court soon thereafter. The appellant subsequently filed another petition dated July 30,1987 asserting consideration of his petition expressing unwillingness in the matter of dissolution of marriage. The Trial Court, however, passed the impugned order dated July 30, 1987 granting a decree for dissolution of the marriage under Section 13-B of the Hindu Marriage Act, 1955.