Sub-section (3) of Section 23 of the Act only envisages nomination of a person by the Court to bring about reconciliation between spouses engaged in matrimonial litigation. It does not say that such nominated person can dissolve the marriage by a decree of divorce. The Act does not postulate (hat the matrimonial Court can refer the matrimonial dispute for dissolving the marriage to a referee or an arbitrator. Rather para 8(1) of the report of the referee recommends dissolution of marriage without going into the allegations and counter allegations of the parties. The award of the referee is not within the purview of Section 13 of the Act and cannot be sustained. The matrimonial Court also has not given any finding that any of the grounds, on which decree of divorce for dissolution of marriage could be obtained by either of the spouses was established. It has dissolved the marriage only on the basis of the report of the referee, which is not permissible under the law. The judgment of the matrimonial Court is de hors Section 13 of the Act and cannot be sustained.
2. The appellant/husband (hereinafter the husband) filed a petition under Section 9 of the Hindu Marriage Act, 1955 (for short, the Act) against the respondent-wife (hereinafter the wife) for restitution of conjugal rights. The wife filed counter-claimed petition under Section 23-A, of the Act seeking relief under Section 13 for dissolution of marriage by a decree of divorce. During the pendency of these petitions, the husband and his counsel made the following statement before the matrimonial Court on August 2, 1991:--
"On involving a number of our relations and common friends, we tried to sort out our differences but unfortunately our efforts proved futile. All the same we have not yet lost hope and have, therefore, agreed to appoint Shri R. S. Bhatia, Retired District & Sessions Judge, now residing in Sector 9 at Faridabad, as our sole referee. We shall present our respective versions before him and abide by his verdict in its letters and spirit on all of our matrimonial disputes. The matter may kindly be referred to him. We shall pay him some remuneration also in equal proportions but the quantum may please be fixed by the Court."
On the same day, the wife and her counsel made the following statement before the Matrimonial Court :--
"We have heard and appraised the statement of the petitioner. We accept it as a faithful representation on our agreement. The matter may please be handed over to our referee Shri R. S. Bhatia."
In the light of these statements, the Matrimonial Court appointed Shri R. S. Bhatia, a retired District & Sessions Judge, as the sole referee of the parties vide order dated August 2, 1991. The same reads thus :--
"In the light of the above recorded statements of the parties and on hearing them, I hereby approve their proposal to refer the matter to their sole Referee Shri R. S. Bhatia, Retired District & Sessions Judge. Both the parties shall present their respective versions before him and shall abide by his verdict on all issues pertaining to their matrimonial disputes. A consolidated fee of Rs. 660/-(Rupees six hundred and sixty) only shall be paid to him by both the parties in equal proportions.
At this stage, on being called Shri R. S. Bhatia agreed to take up the matter as the sole referee of the parties. He has assured the court to give his verdict at the earliest available opportunity.
"Now to come up on 6-9-1991 for scrutiny."
It also bears the signature of Shri R. S. Bhatia.
3. The Referee Shri R. S. Bhatia submitted his award/report dated August 20, 1991. The same reads thus :--
"I was appointed Sole Referee by this Hon'ble Court, vide order dated 2-8-91, to give verdict with regard to the matrimonial disputes between the parties.
2. Both parties along with their friends and relatives appeared before me on 9-8-91 at 9.00 a.m. The list from bridegroom's side is as under :--
1. Sh. Raj Kumar, the husband.
2. Sh. Krishan Murari (father of Raj Kumar),
3. Sh. Shyam Behari (uncle of Raj Kumar),
4. Sh. Jai Shiv Hari (uncle of Raj Kumar),
5. Sh. Brij Behari Bansal,
6. Sh. Tulsi Ram Bansal.
From Bride's side:--
1. Smt. Anjana Gupta, the wife,
2. Sh. Trilok Chand (father of Anjana),
3. Sh. S. C. Goel (uncle of Anjana),
4. Sh. Pushkar Raj Gupta (brother of Anjana),
5. Shri Vinod Goel, Advocate, Counsel for Anjana.
3. I heard the parties and their companions in details and perused the pleadings of the parties in the matrimonial file and went through the papers relating to the case under Section 498-A, I.P.C. However, it was agreed by both sides that one adjournment should be given so that one more attempt to compromise the matter could be made. They said they would bring some more respectables with them on the next hearing. Accordingly, the matter was adjourned to 18-8-1991, the date of the choice of both the parties. On the insis- tence of the bridegroom's side, the time of the meeting was fixed as 11.00 a.m. they said they could not come earlier.
4. On the adjourned date i.e. 18-8-91, the bride's side arrived at 11.00 a.m. sharp. Their team consisted of the following:--
1. Smt. Anjana Gupta, the bride.
2. Sh. Trilok Chand (father of Anjana).
3. Sh. S. C. Goel (Anjana's father's brother).
4. Sh. Ashok Goel (Anjana's father's brother).
5. Master Daya Chand.
6. Sh. Mam Chand Sharma,
7. Sh. Om Parkash Sharma,
8. Sh. Om Parkash Goel,
9. Sh. Pushkar Raj Gupta (Anjana's brother).
5. We waited upto 11.30 a.m. but the b6y's side did not turn up. Therefore, the session dispersed without conducting any proceedings.
6. However, four persons from the bridegroom's side turned up at 11.50 a.m. They were told that since they had not turned up in time, the other party had been sent away and now they too could not be heard.
7. In this way, no proceedings were conducted on 18-8-91, but that is immaterial so far as the hearing of the case is concerned as the same was completed on the first hearing (i.e. on 9-8-91).
8. After hearing the parties in detail and going through the papers and after giving a serious thought to the matter, I submit the following verdict:--
(i) That the marriage between the parties be dissolved by a decree of divorce without going into the allegations and counter-allegations of the parties.
(ii) If verdict No. (i) is accepted and implemented, Raj Kumar, the Bridegroom shall pay a sum of Rs. 1,00,000/ - (Rupees one Lakh only) to the bride, Anjana Kumari to compensate her for marriage expenses and dowry articles.
(iii) After the amount mentioned in verdict No. (ii) has been paid, the case under Sections 498A and 406 etc., I.P.C. registered with FIR No. 249 dated 27-10-90, P.S. Hodel, pending in court of Judicial Magistrate, Palwal, shall be withdrawn and the dowry articles seized in that case shall be returned to Raj Kumar."
4. On receipt of the award of the Referee the matrimonial Court passed the following order on September 6, 1991, which is under challenge in this appeal:--
"This Court was seized of cross-cases filed by the parties with regard to their matrimonial disputes.
To be precise, the husband Raj Kumar moved a petition under Section 9 of the Hindu Marriage Act, 1955 whereas the wife Smt. Anjana initiated divorce proceedings under Section 13 of the Act ibid by way of a counter claim as envisaged by Section 23-A of the said Act.
2. During the trial proceedings on 2-8-1991 at the request of the parties, the entire matter was entrusted to their sole referee Shri Ram Saran Bhatia whose verdict has since been received.
3. Accordingly, in the light of the Referee's verdict, the following relief is hereby provided:--
(a) The marriage between the parties stands dissolved without going into the merits of the allegations and counter allegations;
(b)The husband Raj Kumar shall pay a consolidated amount of Rs. 1,00,000/- (Rupees one Lakh) only to the wife Smt. Anjana Kumari to compensate for the marriage expenses and dowry articles;
(c) Both the parties shall approach the District Magistrate, Faridabad, seeking withdrawal of the proceedings pertaining to a case registered at Police Station Hodal under Sections 498-A and 406, Indian Penal Code, per FIR No. 249 dated 27-10-1990. A reference would also go to the District Magistrate from this Court seeking withdrawal of the said case. The parties shall bear their own costs."
5. Learned counsel for the husband submitted that the matrimonial Court could not refer the matrimonial dispute between the parties to a referee for adjudications; that the order of reference was illegal and the award of the referee is non est, and that the marriage could only be dissolved by a decree of divorce on a petition presented to the matrimonial Court by either of the spouses and on establishing any of the grounds mentioned in Section 13 of the Act.
6. The Act came into force on May 18, 1955. It amends and codifies the law relating to marriage among Hindus. Section 4 gives overriding effect to the provisions of the Act. It abrogates all the rules of law of marriage hitherto applicable to Hindus, whether by virtue of any text or rule of Hindu law or any custom or usage having the force of law, in respect of all matters dealt within the Act. The Act also superesedes any other law, contained in any Central or State legislation in force immediately before it came into operation in so far as such legislation is inconsistent with the provisions contained in the Act. Hindu marriage, under the Act, is monogamous marriage which must be solemnised by performance of the essential rites and ceremonies and there must be no incapacity in the parties to marry one another arising from prohibited degrees of relationship or sapinda relationship. After laying down the requirements relating to solemnisation of a Hindu marriage and stating the conditions appurtenant to the same and stressing that only a monogamous marriage is now permissible in case of Hindus, the Act proceeds to make provision for the reliefs that can be granted by the Court in matrimonial causes and the grounds on which such relief may be obtained. The reliefs which can be obtained under the Act are:--
(1)A decree for nullity of marriage --where the marriage is void ipso jure (Section 11);
(2) Decree for nullity of marriage -- where the marriage may be annulled by the Court on grounds which render it voidable (Sec tion 12);
(3) Decree for divorce on grounds specified in Section 13 of the Act. A decree of divorce dissolving marriage whether solemnised before or after the commencement of the Act, may be obtained by the husband or the wife on the grounds set out in Section 13 which, briefly stated, are:--
(i) that the other spouse has committed adultery; or
(ii) treated the petitioner with cruelty, or
(iii) has deserted the petitioner for a period of two years, or
(iv) has ceased to be a Hindu by conversion to another religion, or
(v) has been incurably of unsound mind or suffering from mental disorder as set out and explained in that section, or
(vi) has been suffering from a virulent and incurable form of leprosy, or
(vii) has been suffering from venereal disease in a communicable form, or
(viii) his renounced the world by entering any religious order, or
(ix) has not been heard of as being alive for a period of seven years or more.
Apart from these grounds, either of the parties to the marriage, whether solemnized before or after the commencement of the Act, may obtain a decree of divorce on the ground that there has been no resumption of cohabitation as between them for a period of one year or upwards after the passing of a decree for judicial separation, or that there has been no restitution of conjugal rights between them for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties.
7. In addition to the aforementioned grounds, a wife can seek dissolution of the marriage on the following grounds:--
(i) in the case of any marriage solemnized before the commencement of the Act, the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has since the solemnization of the marriage, been guilty of rape, sodomy or bestiality, or
(iii) that a decree or order of the Court has been made against the husband awarding maintenance to the wife "notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not taken place for one year or upwards;
AND
(iv) that her marriage was solemnized before she attained the age of fifteen and she had repudiated the marriage before attaining the age of eighteen years even if the marriage had been consummated).
8. A brief resume of these provisions of the Act is suggestive that a decree of divorce dissolving the marriage can be obtained by either of the spouses on the grounds set out in Section 13, apart from the grounds which are exclusively available to the wife. If any of the grounds mentioned therein is not established, a decree of divorce dissolving the marriage cannot be granted.
9. Section 23 of the Act says that in any proceeding under the Act, whether defended or not, the Court can grant decree if it is satisfied that any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. This section imposes duty on the matrimonial Court in the matter of granting any of the reliefs recognized under the-Act, proceedings under the Act are not of the character of ordinary suits and the standard of proof required is that the Court must be satisfied that the ground for relief is established beyond reasonable doubt. The safeguards provided in this Section have to be duly observed. The language employed in subsection (1) of Section 23 clearly shows that clauses (b) to (e) and the latter part of clause (a) lay down certain absolute bars to the granting of any relief under the Act. The words at the close of sub-section (1), "then, and in such a case, but not otherwise, the court shall decree such relief accordingly" emphasize that relief in any proceeding under the Act cannot be granted to the petitioner who is in any way taking advantage of his or her own wrong or disability for the purpose of such relief. Such conduct or disability is an absolute bar to the petitioner's right to seek relief from the Court. The words also emphasize that connivance, condonation, collusion and unnecessary or improper delay are absolute bars to the granting of relief where they apply to the particular ground on which relief is sought. The section requires that before decreeing any relief in any proceeding under the Act, the court must be satisfied-
(a) that the ground for relief exists, meaning thereby that it is established, and
(b) that to the granting of such relief there is no bar of any kind mentioned in the section.
In the proceedings for divorce, the petitioner must prove the alleged offence beyond all reasonable doubt and the Court must be satisfied that for granting such relief, there is no bar of any kind mentioned in Section 23 of the Act. It is well established rule of matrimonial jurisdictions that no judgment for dissolution of marriage can be obtained by consent of parties (apart, of course, from the newly inserted Section 13-B) and it has rep eatedly been said that judgment by default or by consent is unknown in matrimonial causes. Consent to a decree, direct or indirect, is inadmissible as was observed by the House of Lords in the case reported as Russell v. Russal,(I924) AC 678 at 736.
9A. Sub-section (3) of Section 23 of the Act only envisages nomination of a person by the Court to bring about reconciliation between spouses engaged in matrimonial litigation. It does not say that such nominated person can dissolve the marriage by a decree of divorce. The Act does not postulate (hat the matrimonial Court can refer the matrimonial dispute for dissolving the marriage to a referee or an arbitrator. Rather para 8(1) of the report of the referee recommends dissolution of marriage without going into the allegations and counter allegations of the parties. The award of the referee is not within the purview of Section 13 of the Act and cannot be sustained. The matrimonial Court also has not given any finding that any of the grounds, on which decree of divorce for dissolution of marriage could be obtained by either of the spouses was established. It has dissolved the marriage only on the basis of the report of the referee, which is not permissible under the law. The judgment of the matrimonial Court is de hors Section 13 of the Act and cannot be sustained.
10. For the reasons stated above, the appeal succeeds, the judgment and decree of the matrimonial Court is set aside and the case is remitted to the matrimonial Court/ District Judge, Faridabad for decision on merits in accordance with law. The parties thought their respective counsel are directed to appear before the District Judge, Faridabad on February 28, 1994.
11. Appeal allowed.
Print Page
Punjab-Haryana High Court
Raj Kumar Bansal vs Mrs. Anjana Kumari on 27 January, 1994
Equivalent citations: AIR 1995 P H 18
1. This appeal is directed against the judgment and decree of District Judge, Faridabad, dated September 6, 1991, dissolving the marriage of the parties to the lis, without going into the merits of the allegations and counter allegations, in the light of the Referee's verdict.2. The appellant/husband (hereinafter the husband) filed a petition under Section 9 of the Hindu Marriage Act, 1955 (for short, the Act) against the respondent-wife (hereinafter the wife) for restitution of conjugal rights. The wife filed counter-claimed petition under Section 23-A, of the Act seeking relief under Section 13 for dissolution of marriage by a decree of divorce. During the pendency of these petitions, the husband and his counsel made the following statement before the matrimonial Court on August 2, 1991:--
"On involving a number of our relations and common friends, we tried to sort out our differences but unfortunately our efforts proved futile. All the same we have not yet lost hope and have, therefore, agreed to appoint Shri R. S. Bhatia, Retired District & Sessions Judge, now residing in Sector 9 at Faridabad, as our sole referee. We shall present our respective versions before him and abide by his verdict in its letters and spirit on all of our matrimonial disputes. The matter may kindly be referred to him. We shall pay him some remuneration also in equal proportions but the quantum may please be fixed by the Court."
On the same day, the wife and her counsel made the following statement before the Matrimonial Court :--
"We have heard and appraised the statement of the petitioner. We accept it as a faithful representation on our agreement. The matter may please be handed over to our referee Shri R. S. Bhatia."
In the light of these statements, the Matrimonial Court appointed Shri R. S. Bhatia, a retired District & Sessions Judge, as the sole referee of the parties vide order dated August 2, 1991. The same reads thus :--
"In the light of the above recorded statements of the parties and on hearing them, I hereby approve their proposal to refer the matter to their sole Referee Shri R. S. Bhatia, Retired District & Sessions Judge. Both the parties shall present their respective versions before him and shall abide by his verdict on all issues pertaining to their matrimonial disputes. A consolidated fee of Rs. 660/-(Rupees six hundred and sixty) only shall be paid to him by both the parties in equal proportions.
At this stage, on being called Shri R. S. Bhatia agreed to take up the matter as the sole referee of the parties. He has assured the court to give his verdict at the earliest available opportunity.
"Now to come up on 6-9-1991 for scrutiny."
It also bears the signature of Shri R. S. Bhatia.
3. The Referee Shri R. S. Bhatia submitted his award/report dated August 20, 1991. The same reads thus :--
"I was appointed Sole Referee by this Hon'ble Court, vide order dated 2-8-91, to give verdict with regard to the matrimonial disputes between the parties.
2. Both parties along with their friends and relatives appeared before me on 9-8-91 at 9.00 a.m. The list from bridegroom's side is as under :--
1. Sh. Raj Kumar, the husband.
2. Sh. Krishan Murari (father of Raj Kumar),
3. Sh. Shyam Behari (uncle of Raj Kumar),
4. Sh. Jai Shiv Hari (uncle of Raj Kumar),
5. Sh. Brij Behari Bansal,
6. Sh. Tulsi Ram Bansal.
From Bride's side:--
1. Smt. Anjana Gupta, the wife,
2. Sh. Trilok Chand (father of Anjana),
3. Sh. S. C. Goel (uncle of Anjana),
4. Sh. Pushkar Raj Gupta (brother of Anjana),
5. Shri Vinod Goel, Advocate, Counsel for Anjana.
3. I heard the parties and their companions in details and perused the pleadings of the parties in the matrimonial file and went through the papers relating to the case under Section 498-A, I.P.C. However, it was agreed by both sides that one adjournment should be given so that one more attempt to compromise the matter could be made. They said they would bring some more respectables with them on the next hearing. Accordingly, the matter was adjourned to 18-8-1991, the date of the choice of both the parties. On the insis- tence of the bridegroom's side, the time of the meeting was fixed as 11.00 a.m. they said they could not come earlier.
4. On the adjourned date i.e. 18-8-91, the bride's side arrived at 11.00 a.m. sharp. Their team consisted of the following:--
1. Smt. Anjana Gupta, the bride.
2. Sh. Trilok Chand (father of Anjana).
3. Sh. S. C. Goel (Anjana's father's brother).
4. Sh. Ashok Goel (Anjana's father's brother).
5. Master Daya Chand.
6. Sh. Mam Chand Sharma,
7. Sh. Om Parkash Sharma,
8. Sh. Om Parkash Goel,
9. Sh. Pushkar Raj Gupta (Anjana's brother).
5. We waited upto 11.30 a.m. but the b6y's side did not turn up. Therefore, the session dispersed without conducting any proceedings.
6. However, four persons from the bridegroom's side turned up at 11.50 a.m. They were told that since they had not turned up in time, the other party had been sent away and now they too could not be heard.
7. In this way, no proceedings were conducted on 18-8-91, but that is immaterial so far as the hearing of the case is concerned as the same was completed on the first hearing (i.e. on 9-8-91).
8. After hearing the parties in detail and going through the papers and after giving a serious thought to the matter, I submit the following verdict:--
(i) That the marriage between the parties be dissolved by a decree of divorce without going into the allegations and counter-allegations of the parties.
(ii) If verdict No. (i) is accepted and implemented, Raj Kumar, the Bridegroom shall pay a sum of Rs. 1,00,000/ - (Rupees one Lakh only) to the bride, Anjana Kumari to compensate her for marriage expenses and dowry articles.
(iii) After the amount mentioned in verdict No. (ii) has been paid, the case under Sections 498A and 406 etc., I.P.C. registered with FIR No. 249 dated 27-10-90, P.S. Hodel, pending in court of Judicial Magistrate, Palwal, shall be withdrawn and the dowry articles seized in that case shall be returned to Raj Kumar."
4. On receipt of the award of the Referee the matrimonial Court passed the following order on September 6, 1991, which is under challenge in this appeal:--
"This Court was seized of cross-cases filed by the parties with regard to their matrimonial disputes.
To be precise, the husband Raj Kumar moved a petition under Section 9 of the Hindu Marriage Act, 1955 whereas the wife Smt. Anjana initiated divorce proceedings under Section 13 of the Act ibid by way of a counter claim as envisaged by Section 23-A of the said Act.
2. During the trial proceedings on 2-8-1991 at the request of the parties, the entire matter was entrusted to their sole referee Shri Ram Saran Bhatia whose verdict has since been received.
3. Accordingly, in the light of the Referee's verdict, the following relief is hereby provided:--
(a) The marriage between the parties stands dissolved without going into the merits of the allegations and counter allegations;
(b)The husband Raj Kumar shall pay a consolidated amount of Rs. 1,00,000/- (Rupees one Lakh) only to the wife Smt. Anjana Kumari to compensate for the marriage expenses and dowry articles;
(c) Both the parties shall approach the District Magistrate, Faridabad, seeking withdrawal of the proceedings pertaining to a case registered at Police Station Hodal under Sections 498-A and 406, Indian Penal Code, per FIR No. 249 dated 27-10-1990. A reference would also go to the District Magistrate from this Court seeking withdrawal of the said case. The parties shall bear their own costs."
5. Learned counsel for the husband submitted that the matrimonial Court could not refer the matrimonial dispute between the parties to a referee for adjudications; that the order of reference was illegal and the award of the referee is non est, and that the marriage could only be dissolved by a decree of divorce on a petition presented to the matrimonial Court by either of the spouses and on establishing any of the grounds mentioned in Section 13 of the Act.
6. The Act came into force on May 18, 1955. It amends and codifies the law relating to marriage among Hindus. Section 4 gives overriding effect to the provisions of the Act. It abrogates all the rules of law of marriage hitherto applicable to Hindus, whether by virtue of any text or rule of Hindu law or any custom or usage having the force of law, in respect of all matters dealt within the Act. The Act also superesedes any other law, contained in any Central or State legislation in force immediately before it came into operation in so far as such legislation is inconsistent with the provisions contained in the Act. Hindu marriage, under the Act, is monogamous marriage which must be solemnised by performance of the essential rites and ceremonies and there must be no incapacity in the parties to marry one another arising from prohibited degrees of relationship or sapinda relationship. After laying down the requirements relating to solemnisation of a Hindu marriage and stating the conditions appurtenant to the same and stressing that only a monogamous marriage is now permissible in case of Hindus, the Act proceeds to make provision for the reliefs that can be granted by the Court in matrimonial causes and the grounds on which such relief may be obtained. The reliefs which can be obtained under the Act are:--
(1)A decree for nullity of marriage --where the marriage is void ipso jure (Section 11);
(2) Decree for nullity of marriage -- where the marriage may be annulled by the Court on grounds which render it voidable (Sec tion 12);
(3) Decree for divorce on grounds specified in Section 13 of the Act. A decree of divorce dissolving marriage whether solemnised before or after the commencement of the Act, may be obtained by the husband or the wife on the grounds set out in Section 13 which, briefly stated, are:--
(i) that the other spouse has committed adultery; or
(ii) treated the petitioner with cruelty, or
(iii) has deserted the petitioner for a period of two years, or
(iv) has ceased to be a Hindu by conversion to another religion, or
(v) has been incurably of unsound mind or suffering from mental disorder as set out and explained in that section, or
(vi) has been suffering from a virulent and incurable form of leprosy, or
(vii) has been suffering from venereal disease in a communicable form, or
(viii) his renounced the world by entering any religious order, or
(ix) has not been heard of as being alive for a period of seven years or more.
Apart from these grounds, either of the parties to the marriage, whether solemnized before or after the commencement of the Act, may obtain a decree of divorce on the ground that there has been no resumption of cohabitation as between them for a period of one year or upwards after the passing of a decree for judicial separation, or that there has been no restitution of conjugal rights between them for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties.
7. In addition to the aforementioned grounds, a wife can seek dissolution of the marriage on the following grounds:--
(i) in the case of any marriage solemnized before the commencement of the Act, the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has since the solemnization of the marriage, been guilty of rape, sodomy or bestiality, or
(iii) that a decree or order of the Court has been made against the husband awarding maintenance to the wife "notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not taken place for one year or upwards;
AND
(iv) that her marriage was solemnized before she attained the age of fifteen and she had repudiated the marriage before attaining the age of eighteen years even if the marriage had been consummated).
8. A brief resume of these provisions of the Act is suggestive that a decree of divorce dissolving the marriage can be obtained by either of the spouses on the grounds set out in Section 13, apart from the grounds which are exclusively available to the wife. If any of the grounds mentioned therein is not established, a decree of divorce dissolving the marriage cannot be granted.
9. Section 23 of the Act says that in any proceeding under the Act, whether defended or not, the Court can grant decree if it is satisfied that any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. This section imposes duty on the matrimonial Court in the matter of granting any of the reliefs recognized under the-Act, proceedings under the Act are not of the character of ordinary suits and the standard of proof required is that the Court must be satisfied that the ground for relief is established beyond reasonable doubt. The safeguards provided in this Section have to be duly observed. The language employed in subsection (1) of Section 23 clearly shows that clauses (b) to (e) and the latter part of clause (a) lay down certain absolute bars to the granting of any relief under the Act. The words at the close of sub-section (1), "then, and in such a case, but not otherwise, the court shall decree such relief accordingly" emphasize that relief in any proceeding under the Act cannot be granted to the petitioner who is in any way taking advantage of his or her own wrong or disability for the purpose of such relief. Such conduct or disability is an absolute bar to the petitioner's right to seek relief from the Court. The words also emphasize that connivance, condonation, collusion and unnecessary or improper delay are absolute bars to the granting of relief where they apply to the particular ground on which relief is sought. The section requires that before decreeing any relief in any proceeding under the Act, the court must be satisfied-
(a) that the ground for relief exists, meaning thereby that it is established, and
(b) that to the granting of such relief there is no bar of any kind mentioned in the section.
In the proceedings for divorce, the petitioner must prove the alleged offence beyond all reasonable doubt and the Court must be satisfied that for granting such relief, there is no bar of any kind mentioned in Section 23 of the Act. It is well established rule of matrimonial jurisdictions that no judgment for dissolution of marriage can be obtained by consent of parties (apart, of course, from the newly inserted Section 13-B) and it has rep eatedly been said that judgment by default or by consent is unknown in matrimonial causes. Consent to a decree, direct or indirect, is inadmissible as was observed by the House of Lords in the case reported as Russell v. Russal,(I924) AC 678 at 736.
9A. Sub-section (3) of Section 23 of the Act only envisages nomination of a person by the Court to bring about reconciliation between spouses engaged in matrimonial litigation. It does not say that such nominated person can dissolve the marriage by a decree of divorce. The Act does not postulate (hat the matrimonial Court can refer the matrimonial dispute for dissolving the marriage to a referee or an arbitrator. Rather para 8(1) of the report of the referee recommends dissolution of marriage without going into the allegations and counter allegations of the parties. The award of the referee is not within the purview of Section 13 of the Act and cannot be sustained. The matrimonial Court also has not given any finding that any of the grounds, on which decree of divorce for dissolution of marriage could be obtained by either of the spouses was established. It has dissolved the marriage only on the basis of the report of the referee, which is not permissible under the law. The judgment of the matrimonial Court is de hors Section 13 of the Act and cannot be sustained.
10. For the reasons stated above, the appeal succeeds, the judgment and decree of the matrimonial Court is set aside and the case is remitted to the matrimonial Court/ District Judge, Faridabad for decision on merits in accordance with law. The parties thought their respective counsel are directed to appear before the District Judge, Faridabad on February 28, 1994.
11. Appeal allowed.
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