KANCHAN MOHANTY Vs. KULAMANI MOHANTY

JUDGEMENT

(1.) This revision is directed against an order dated 13-3-1989 passed by the Subordinate Judge, Athagarh in Misc. Case No. 70/ 88 arising out of O.S. No. 5 of 1988.

(2.) O. S. No. 5 of 1988 is a matrimonial suit in which the husband prayed for a decree of divorce against his wife. By his judgment dated 19-8-1988 the Subordinate Judge allowed the suit on contest and passed a decree for divorce as prayed for in the suit. The present petitioner later on filed an application praying to review and recall the judgment dated 19-8-1988 passed in the said suit alleging that the decree for divorce has been obtained fraudulently. It was stated in the said application that she was although living with her husband and her thumb impression was taken on a plain paper which was later on manipulated to show that she had given her consent for the decree for divorce. She had also given her statement in court to the effect that she has agreed for a decree of divorce to be passed, but now explains the same by stating that she was pressurised to make such a statement as she was given to understand that the proceeding would be dropped thereafter. She has also said that the petition appears to have been disposed on consent of both parties which on the face of it is not in accordance with law inasmuch as the provisions of S. 13-B of the Hindu Marriage Act, 1955 (hereinafter called the 'Act') have not been complied with. The said application was contested. The opposite party asserted that the written statement in the original case was filed by her (petitioner) with her free consent and she having admitted the allegations made in the application in the written statement as well as in her statement in court, the court was justified in recording her consent which cannot be the subject matter of review. The Subordinate Judge after hearing both parties has passed the impugned order rejecting the application for review on the ground that the grievance of the petitioner could be remedied by challenging the same in the appellate court, but the court which passed the decree has no jurisdiction being functus officio after the decree was passed.

(3.) From the records of the court below I find that the application though not styled as one under Section13-B of the Act, an attempt was made to give it a colour as if it was an application under that provision. The essential allegation against her was that she had illicit connection with one Laxman Sahoo of village Bahali. But curiously enough the said Laxman Sahoo was not impleaded as a party as required under Rule 5 of Hindu Marriage and Divorce Rules, 1956. Paragraphs 7 and 8 of the application read as follows :-