MILOO MISHRA ALIAS MOHAPATRA Vs. APUN KUMAR MOHAPATRA

JUDGEMENT

(1.) I have heard Mr. Anupam rath, learned counsel for the petitioner-wife and Mr. Bhabani Shankar Das Parida, learned counsel for the O. P.-husband.

(2.) BOTH the husband and wife have filed application for divorce on mutual consent. The husband is living in U. S. A. and the wife is living in India. All the formalities have been admitted and followed under Section 13-B of the Hindu Marriage Act. Nowhere it is stated in the impugned order that the statutory formalities had not been adhered to. Such non-adherence is also not a ground for impugned order. Only ground in which the impugned order is passed is that as envisaged under Section 13-B of the Hindu marriage Act, the Court has to hear the parties and for which hearing the trial Court wanted the presence of both the parties in court. True it is that Section 13-B of the hindu Marriage Act in its proviso (2)provides that on the consent of both the parties, the Court shall on being satisfied, after hearing the parties and after making such enquiry as it thinks fit, pass a decree of divorce. By relying on the words "after hearing the parties" the trial Court wanted the presence of the husband from USA to hear him.

(3.) THE learned counsel for the husband submitted that it is very difficult and more expensive for the husband to come all the way from USA to say that he agreed for this divorce on mutual consent. The learned counsel for the petitioner relied upon observation in 1995 (2) Civil court Cases 629 : (1996 AIHC 1717) (A. P.)in the case of P. Venkatarama Reddi and D. H. Nasir while dealing with Section 13-B of this above enactment the learned Subordinate judge with the cited case took the view that both the parties to the marriage should necessarily be present in the Court for examination and the filing of the affidavit will not be a substitute for that requirement. The learned Judge observed that unless the parties are personally present, it would be difficult for the Court to assess whether they have changed their mind since the date of filing the petition. High Court of Andhra pradesh has found that it is not a correct view to be taken. 'hearing' does not necessarily mean that both parties have to be examined. The word 'hearing' is often used in a broad sense which need not always mean personal hearing. In any case, the evidence of one of the parties, i. e. the appellant herein was recorded by the Court. Thus, even if the word 'hearing' is construed in a literal sense that requirement must be deemed to have been satisfied in the instant case in view of the examination of the appellant. On the husband's side there is evidence in the form of an affidavit which can be legitimately taken into account in view of Order XIX, Rule 1. CPC. "