SUMAN Vs. SURENDRA KUMAR

JUDGEMENT

(1.) This review petition has been filed seeking review of the order dated 2-12-1999 whereby an appeal filed by the applicant against the decision of the Family Court rejecting an application under Section 13B of the Hindu Marriage Act (in short, referred to hereinafter as the Act) was dismissed . After hearing counsel for the parties, the review application is allowed. The impugned judgment of this Court which is sought to be reviewed, in our view, suffers from an error apparent on the face of the record and, therefore, the review application is allowed.

(2.) We have heard learned counsel for the parties on merit.

(3.) Briefly, the facts are that a marriage was solemnised between the parties at Jodhpur on 24th May, 1995. Soon thereafter differences arose between the parties and they started living separately. We need not go into further details of the dispute. On 15-1-1999, the parties filed a joint petition under Section 13B of the Act for obtaining a decree of divorce with mutual consent in the Family Court at Jodhpur. The Family Court recorded statements of the parties as per the procedure and fixed a date for appearance of the parties which was six months later. On the next date of hearing fixed by the Family Court, the husband did not appear the wife appeared. It appears from the order of the Family Court dated 27-9-1999 that in spite of a few adjournments the respondent-husband did not appear before the Family Court at the stage of second motion though the wife appeared on each date of hearing. The Family Court has further noted that neither the husband put in appearance nor he sent any information to the Family Court. Rather, in view of this conduct of the husband, the wife moved an application for summoning the husband as a witness to record his statement. This application was rejected by the Family Court on the growes that there was no procedure for recording evidence. The Family Court further declined to issue any notice to the husband to appear in Court on the ground that there was no such procedure. The Family Court mainly proceeded on the basis that it was for the both parties to appear before the Family Court to obtain decree of divorce with mutual consent and in the absence of both the parties decree for divorce could not be passed. The application under Section 13B of the Act was, therefore, dismissed by the Family Court. The present appeal is directed against the said judgment of the Family Court.