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Kunal Yadav vs Smt. Beenu Yadav on 16 October, 2019


Court No. – 34

Case :- FIRST APPEAL No. – 479 of 2018

Appellant :- Kunal Yadav

Respondent :- Smt. Beenu Yadav

Counsel for Appellant :- Satendra Kumar Singh

Counsel for Respondent :- Mohan Kant Baghel,Madan Mohan,Prem Sagar Verma

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

1. This appeal was listed under Chapter 13 Rule 3 of Allahabad High Court Rules, 1952 (hereinafter referred to as “Rules, 1952”) but we find that appellant has submitted his paper book. Counsel for respondent stated that he does not propose to file paper book and ready to argue the matter on the basis of paper book filed by appellant. Hence, with the consent of counsel for the parties we proceed to hear and decide the appeal finally at this stage.

2. Heard Sri Satendra Kumar Singh, learned counsel for appellant and Sri Prem Sagar Verma, learned counsel for respondent.

3. This appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as “Act, 1984”) has arisen from judgment and decree dated 23.05.2018 passed by Sri Satyanand Upadhyay, Principal Judge, Family Court, Firozabad, dismissing Divorce Petition filed under Section 13B of Hindu Marriage Act, 1955 (hereinafter referred to as “Act 1955”). The Court below has dismissed petition filed under Section 13B of Act, 1955 since one of the parties to the said petition, i.e. respondent-wife Smt. Beenu Yadav, withdrew her consent and stated that she does not want a consented decree of divorce and wants to live with husband-appellant.

4. The facts of case are very simple. Initially a joint application was filed by appellant and respondent under Section 13B of Act, 1955 before Principal Judge, Family Court, Firozabad, which was registered as Divorce Petition No.755 of 2016. The contents of application also shows that it was agreed between the parties that appellant-husband shall pay a sum of Rs.10 lakhs to respondent-wife towards lump-sum maintenance, Stridhan etc. and the said amount was actually paid, as stated in para 11 of divorce petition. Both the parties also filed affidavit in the Court below.

5. When matter proceeded, an application was filed by respondent on 15.5.2018 stating that she is withdrawing her consent and does not want divorce decree and instead she wants to continue her marital relation with appellant therefore, marital relation of parties should be allowed to continue.

6. Aforesaid application is paper No.18C and para 4 of application reads as under :

^^;g fd izkfFkZ;k @ izFke i{k }kjk vkilh lgefr ds vk/kkj ij fookg foPNsn djkus dk fu.kZ; vkdzks’k] vkos’k ,oa tYnckth esa fy;k x;k FkkA vc izkfFkZ;k @ izFke i{k viuh ukckfyx iqh ds csgrj Hkfo”; ,oa dy;k.k gsrq vc f}rh; i{k ls fookg foPNsn ugha djkuk pkgrh gS rFkk mlds lkFk vius oSokfgd fj’rs dks cukdj j[kuk pkgrh gSA**

“That the decision for dissolution of marriage on mutual consent was taken by the lady applicant/first party in an anger, fury and hurry. Now the lady applicant/first party does not want dissolution of marriage from the second party and wants to continue her marital relations with him for better future and welfare of her minor daughter.” (English Translation by Court)

7. Since respondent-wife withdrew her consent, on which divorce petition is founded, it was difficult to pass decree of divorce treating consent to be undisputed for the reason that consent decree could have been passed only when both the parties have consented and consent continued till the matter is decided by Court below.

8. Counsel for appellant contended that once conditions, on which respondent wanted a consent divorce decree, were complied with and amount of maintenance was also paid, it was not open to respondent to withdraw her consent and therefore Court below ought to have rejected application submitted by respondent-wife and divorce petition filed under Section 13B of Act, 1955 ought to have been decreed.

9. Learned counsel for respondent on the contrary submitted that divorce decree can be passed when not only application with the consent of both the parties is filed but also during pendency of matter, consent continued and maintained and there is no law which deny any of the parties to withdraw his/her consent so as to render Section 13B of Act, 1955 inapplicable.

10. The points for consideration in this case is :

(I) Whether withdrawal of consent by respondent during pendency of matter was permissible in law; and

(II) Whether Court below was justified in dismissing divorce petition filed under Section 13B of Act, 1955 on the ground that consent has been withdrawn by respondent.

11. Under Section 13B of Act, 1955, a divorce decree can be passed on mutual consent and it reads as under :

“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 solemnised before or after the commencement of the SectionMarriage Laws (Amendment) Act, 1976 (68 of 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.

(2) On the motion of both the parties made not earlier that six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

(Emphasis added)

12. The aforesaid provision was not initially existing in the Statute but inserted by Act No.68 of 1976 and made effective from 27.5.1976 so that matters in which both parties are satisfied that they should be separated and divorce should be granted, instead of continuing litigation between the such parties, matter may be decided at an early date.

13. The provision is for the benefit of litigating parties so as to maintain peace and harmony in respective relations. Under sub-section (2) of Section 13B of Act, 1955, it is clearly mentioned that petition if is not withdrawn, in the meantime, Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce.

14. The aforesaid provision clearly shows that petition, once presented, does not become immune from withdrawing consent by either of the parties. On the contrary, consent can be withdrawn by any of the parties or both the parties when the matter is pending and therefore, Court has to record its satisfaction that averments in the petition are true and parties want divorce with consent and only thereafter decree of divorce shall be passed.

15. In the present case, it is evident that during pendency of divorce petition, respondent withdrew her consent by making specific application and Court, therefore, found that averment made in divorce petition that both the parties want divorce with consent is not true and as one of the parties has withdrawn consent, has rightly rejected the application.

16. Section 13B of Act, 1955, in our view, clearly contemplates and permits that consent can be withdrawn at any time. In taking the aforesaid view, we are fortified from a judgment by Supreme Court in SectionSmt. Sureshta Devi vs. Om Prakash AIR 1992 SC 1904 wherein Court has held that consent can be withdrawn by either of the parties. We, therefore, answer both the questions (I) and (II) against appellant.

17. No other point has been argument.

18. Appeal lacks merit. Dismissed.

Order Date :- 16.10.2019




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