DURGA DASS Vs. REETA DEVI

JUDGEMENT

(1.) -Parties through their counsel have made a prayer for the grant of a decree for dissolution of marriage on the basis of mutual agreement. The appellant has filed this appeal against the order dated 31.7.1996 passed by the learned Additional District Judge (Matrimonial Cases) Jammu whereby he has dismissed his petition for restitution of conjugal rights. On facts it was held that the respondent herein had deserted the appellant as she was being treated cruelly by him. The parties were directed to give the reasons for making the prayer for dissolution of marriage and both of them have made statements on oath that it is impossible for them to live as spouses. In order to end this strife they are prepared to part company with each other and it is beneficial for both of them.

(2.) The learned counsel appearing for the respondent has contended that the factum of cruelty stands judicially proved before the trial court and this court in appeal can grant any relief under the Act during the pendency of the appeal to which the respondent is entitled. In support of his contention he has referred to Section 29 of the J & K Hindu Marriage Act, 1980 (hereinafter to be referred to as the Act).

(3.) Both the counsels have urged that the grant of relief in these circumstances will not run contrary to the mandates of Section 15 of the Act as the proceedings are pending since 5-1-1995 (before the trial Court) and this appeal is a continuation of the lis. so they are 'entitled to the relief which is beneficial for both of them. In support of this contention. the counsel for the respondent has cited the cases of Ashok Hurra v. Rupa Bipin Zaveril andKanchan Deui v, Promodh KumarMittal & Anr.2. The Apex Court in both these cases have exercised the powers under Article 142 of the Constitution and granted the divorce. Viewing the present case in the context of the abjove decided cases, it, can be said that the gr0nt of relief of divorce on the basis of mutual consent of the parties by this court will not run contrary to the raison det're of Section 15 of the Act. Rather, the parties will be relieved of the mental torture and agony which they are undergoing. In this view of the matter, the petition filed under Section 9 of the Act has been converted into application under Section 15 of the Act and a decree for divorce by mutual consent is hereby passed in their favour. Accordingly, their marriage stands dissolved with effect from today i.e. February 12,1998. Appeal allowed.