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Sarvajeet Singh vs Kuljeet Kaur on 6 February, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1295/2018

Sarvajeet Singh S/o Balveer Singh, B/c Jat Sikh, R/o Chak 23
B.b. Dhani, Tehsil Badobar, District Sriganganagar.

—-Appellant
Versus
Kuljeet Kaur W/o Sarvjeet Singh D/o Avtar Singh, B/c Jat Sikh,
R/o Chak 44 G.G. Tehsil Srikaranpur, District Sriganganagar.

—-Respondent

For Appellant(s) : Mr. Pankaj Gupta
For Respondent(s) : Dr. R.D.S.S. Kharlia

HON’BLE MR. JUSTICE P.K. LOHRA

Order

06/02/2019

The instant appeal is filed by appellant-husband to challenge

judgment and decree dated 03.04.2018, passed by Additional

District Judge, Srikaranpur, District Sriganganagar (for short,

‘learned trial Court’) accepting the application of both the parties

for divorce by mutual consent under Section 13-B of the Hindu

Marriage Act, 1955 (for short, ‘Act’). The learned trial Court, by

the impugned judgment and decree annulled marriage of the

spouses and awarded a lumpsum amount of permanent alimony

and maintenance to respondent-wife to the tune of Rs.4,00,000.

The appellant-husband was directed to pay the aforesaid amount

within two months.

Succinctly stated, the facts of the case are that appellant and

respondent tied their nuptial knot on 04.12.2006 as per Hindu-

Sikh religion in Village 44 G.G., Srikaranpur, District
(2 of 4) [CMA-1295/2018]

Sriganganagar. After marriage, out of the wedlock, a daughter

Navpreet Kaur was born on 14.01.2009. The matrimony

continued streamlined for quite some time but thereafter some

acrimony cropped-up between the parties. The misunderstanding

between the spouses reached to its optimum level leading to

lauching of criminal case at the behest of respondent-wife and

finally both of them decided to call it a day by way of ending

matrimony. In order to abate their misery perpetually, the

spouses agreed to seek divorce by mutual consent and

consequently a joint petition under Section 13-B of the Act was

filed by them before the learned trial Court. Although, both the

spouses were present at the time of presentation of the petition

for divorce by mutual consent and first motion hearing but

subsequently on second motion of hearing after six months,

nothing turned out of the litigation, nor during the gestation

period of six months consent was withdrawn by either of the

parties. The proceedings of the petition for mutual divorce

continued for yet another approximately four years and during

interregnum learned trial Court made sincere endeavor to call the

parties for reconciliation but all its efforts went in vain due to

absence of the appellant. It is also noteworthy that after

presentation of the petition for mutual divorce, both the spouses

started living separately and virtually matrimonial relations

reached to its vanishing point. At this stage, it would also be

significant to notice here that when both the spouses agreed to

dissolve the marriage by mutual consent by entering into

compromise, in terms of the compromise, the prosecution

launched at the behest of wife against appellant-husband for
(3 of 4) [CMA-1295/2018]

offence under Sections 498A and 406 IPC was also settled and the

offences were compounded resulting in acquittal of the appellant.

Be that as it may, for the reasons best known to appellant,

he did not attend second motion hearing, and therefore, learned

trial Court, in absence of withdrawal of his consent, presumed his

consent and passed the decree for divorce by mutual consent.

While passing the decree, learned trial Court has placed reliance

on Division Bench Judgment of Bombay High Court in case of

Prakash Alumal Kalandari Vs. Mrs. Jahnavi Prakash Kalandari [AIR

2011 Bombay 119].

I have heard learned counsel for the parties and perused the

impugned judgment and decree.

Upon consideration of the matter in light of the provision

under Section 13-B of the Act, in my considered opinion, mere

non-appearance of either of the spouses on second motion

hearing, cannot be an impediment, much less legal impediment

for passing a decree of divorce by mutual consent. The same view

is also endorsed by the Division Bench of Bombay High Court in

Prakash Alumal Kalandari’s case (supra). This Court, in case of

Sweta Vs. Dinesh Khetani [2016 (4) RLW 3389 Raj.] has also

examined a case for dissolution of marriage under Section 13-B of

the Act in identical facts and circumstances of the case. The

Court, while taking into account the factum of non-withdrawal of

consent by one of the spouses (husband) and his continuous

absence during second motion hearing, found the order of Family

Court rejecting the petition as laconic. The Court held:

(4 of 4) [CMA-1295/2018]

“7. Therefore, viewed from any angle, in the
backdrop of peculiar facts and circumstances of the
instant case and law laid down by this Court in Smt.
Suman (supra), the impugned order passed by the
Family Court cannot be sustained.

8. Resultantly, instant petition is allowed. The
impugned order dated 9.10.2015 (Annex.8) passed
by the Family Court is hereby quashed and set aside
and the matter is remanded back to the Family
Court for passing appropriate decree/order for
dissolution of marriage by mutual consent following
the verdict of Division Bench of this Court in Smt.
Suman (supra). The petitioner may appear before
the Family Court on 25.5.2016 and the Family Court
is further directed to conclude the proceedings as
expeditiously as possible preferably within a period
of two months thereafter. Let record of the case be
remitted back to the Family Court No.1, Jodhpur
forthwith.”

In view of foregoing discussion, I am unable to find any error

much less manifest error in the impugned judgment and decree

passed by learned trial Court warranting interference in exercise of

appellate jurisdiction.

Consequently, the appeal fails and same is hereby rejected.

(P.K. LOHRA),J

22-T.Singh/-

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