Ratio Decidendi:
“Marriage cannot be dissolved by spouses on their own by entering into an agreement and it can only be dissolved by passing of a decree by the competent Court.”
Smt. Jatina Samir Shah nee
Jatina Rasiklal Thakkar (Udadkat),
Vs.
Shri Samir Mohit Shah, of Bombay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.160 OF 2008
Citation;2009(1)BomCR741, 2008(110)BOMLR3491, 2009(1)MhLj628
Coram : P.B. MAJMUDAR &
SMT. R.P. SONDURBALDOTA, JJ.
Date : 7TH October, 2008
1. Admit.
2. Mr.L.C.Joshi,
the
learned
service on behalf of respondent.
counsel
waives
With the consent of
both the sides, this Appeal is taken up for final
hearing today.
3.
This appeal is directed against the judgment
and order passed by Family Court No. 6, Bandra, Mumbai
dated 20th November, 2007 in Petition No.F-646 of 2007,
by which the learned Judge dismissed the same on the
ground that the pre-requisite condition of filing of
the
petition
for
divorce
by
mutual
consent
is
not
satisfied, as in view of the agreement executed by the
on
the
date
of
filing
the
application, the
relationship of husband and wife was subsisting. The
ig
that
parties regarding mutual divorce, it cannot be said
appellant and respondent herein had submitted the said
petition for mutual divorce under Section 13(b) of The
Hindu Marriage Act, 1955 for dissolution of marriage
by mutual consent. The marriage between the appellant
and respondent was solemnized on 2nd February, 2006 and
however, they realised that it is not possible for
them to continue the matrimonial tie any further and
they separated from each other, in the second week of
June,2006. Since then, the appellant-wife is residing
with her parents.
A joint petition thereafter was
submitted on 10th May, 2007 under Section 13(b) of the
Hindu
Marriage
document
Act.
relating
also annexed.
to
Along
with
divorce
by
the
application
mutual
consent
a
was
The parties interse agreed by the said
agreement that the marriage solemnized between them is
hereby dissolved by mutual consent.
Clause 6 in the
said agreement provides as under :-
4.
6.“Hence ,the marriage solemnized between the
parties on 2nd February 2006 is hereby
dissolved by mutual consent”
The learned Judge of the Family Court rejected
the said application on the ground that on the date of
presenting the application, the marriage was already
dissolved by mutual agreement and therefore it cannot
ig
be said that the appellant and the respondent were the
husband and wife on the relevant date i.e. on the date
filing
of
the
application
and
since
the
of
relationship between them was not subsisting at the
time of filing of the application. In view of the
agreement produced on record, the learned Trial judge
was of the opinion that the petition filed by the
spouses whose marriage already stood dissolved prior
to
filing
of
the
petition,
cannot
present
such
petition as no relationship is in existence and on
that basis the application was dismissed.
5.
is
At the time of the hearing of this Appeal, it
pointed
out
by
both
the
advocates
that
the
appellant and respondent both are educated people, as
the appellant-wife is an Architect and the respondent-
husband is a Chemical Engineer and they have realised
that it is not possible for them to stay together and
that
decree
for
dissolution
4
of
marriage
under
be passed.
judge
It is submitted that the learned Trial
has
petition
committed
on
the
an
error
ground
that
have
gone
through
dismissing
the
the
same
judgment
is
of
the
not
the
ig
We
in
maintainable.
6.
Section13(b) of the Hindu Marriage Act is required to
learned trial judge and we have also gone through the
We have also gone through the original
documents.
application as well as the document which was annexed
with the original application.
The principal question
which is required to be considered is as to whether a
joint petition filed by the appellant and respondent
herein before the trial court was maintainable.
this
connection,
it
is
required
to
be
noted
In
that
simply because an agreement was produced along with
the original application showing that the marriage has
been dissolved by entering into an agreement in this
behalf can never be said to be a ground for coming to
the conclusion that the marriage was not subsisting on
the
date
of
the
filing
of
the
application.
The
spouses cannot dissolve the marriage on their own by
entering into any sort of agreement and such type of
agreement cannot be recognised by the court of law
unless satisfactory evidence is led before the court,
that by virtue of custom, a customary divorce has been
In the instant case, the family
obtained by them.
court has not recorded any finding that the marriage
was
legally
dissolved
by
entering
agreement on the basis of any custom.
any
evidence
in
this
behalf,
an
into
such
an
Unless there is
agreement
produced
before the court was nothing but a mere piece of paper
which has no evidentiary value at all.
By entering
ig
into such an agreement, a marriage can never be said
to be dissolved in any manner.
The learned Judge,
therefore, in our view, committed an error in coming
to
the
conclusion
that
in
view
of
the
agreement
between the parties there was no subsisting marriage
between the appellant and respondent at the time of
filing of the application and that such marriage stood
dissolved at the time of filing of this application.
No weigtage can be given to such an agreement by the
court and therefore it can be said that the marriage
was subsisting irrespective of such an agreement on
the date of filing of the application.
can be said
No marriage
to have been dissolved by entering into
such type of agreement, unless an appropriate evidence
is produced before the Court showing that a marriage
can
be
dissolved
between
the
parties
by
way
of
customary divorce, in view of prevailing custom in the
community. In the instant case, no such evidence is
produced and therefore the marriage can be said to be
subsisting and it can on the date of the filing of the
application and such marriage can be dissolved only by
passing a decree by the competent court.
In this
connection, reference is required to be made to the
decision of the Supreme court in the case of Ramesh
Chandra Rampratapji Daga v/s Rameshwari Ramesh Chandra
ig
Daga reported in A.I.R. 2005 SUPREME COURT Page 422.
In the said judgment it has been held by the Supreme
in
para-12
that
“A
Hindu
marriage
can
be
Court
dissolved only in accordance with the provisions of
the Act by obtaining a decree of divorce from the
Court. In the absence of any decree of dissolution of
marriage from the Court, it has to be held that in law
the first marriage of the wife subsisted when she went
through the second marriage with the present husband”.
7.
In the case of Subramani and Others v/s. M.
Chandralekha, page 485, reported in the same Volume,
it has been held by the Supreme court that paragraph
No.15 that “such a custom being an exception to the
general law of divorce ought to have been specially
pleaded and established by the party propounding such
a custom since the said custom of divorce is contrary
to the law of the land and which, if not proved, will
be a practice opposed to public policy”.
In the instant case, in view of the same, in
our view, the trial court has committed an error in
coming to the conclusion that there was no subsisting
marriage
between
the
parties
on
the
date
of
The trial court should have
the Hindu Marriage Act.
presentation of the application under Section 13(b) of
ignored the agreement regarding mutual divorce.
8.
In view of what is stated above, normally the
matter is required to be send back,
however, it is
pointed out by both the advocates that when both sides
have
agreed
sending
the
entertain
to
separate,
matter
the
this
back
to
application
court,
the
and
trial
pass
an
instead of
court, may
appropriate
order as per Section 13(b) of the Hindu Marriage Act.
We
have
accordingly
respondent
possible
stayed
and
to
we
save
together
interviewed
are
the
for
the
satisfied
marriage
few
as
months
appellant
that it
they have
after
is
and
not
hardly
marriage
and
since considerable time they are staying separately.
The statutory requirement under Section 13(b) is also
satisfied
aforesaid
in
the
aspect
instant
of
the
case.
matter,
Considering
the
the
original
application submitted under Section 13(b) of the Hindu
Marriage Act, is allowed.
The marriage between the
appellant and respondent stands dissolved by passing
decree under Section 13(b) of the Hindu Marriage Act.
It
is
pointed
out
to
the
court
that
nothing
required to be paid in any manner to any one.
marriage
between
stands
appellant
and
dissolved.
the
The
accordingly
the
is
The
respondent
copy
of
the
original application which is produced before us is
ig
taken on record and marked `X'.
As
pointed earlier,
we have satisfied that the requirement under Section
13(b) of the Hindu Marriage Act
time
of
filing
of
the
is satisfied.
original
At the
application
under
Section 13(b) of the Hindu Marriage Act and at the
time of filing of the petition, the marriage between
the spouses was already subsisting irrespective of any
agreement executed by them. This appeal is accordingly
allowed by setting aside the order of the trial Court
in the aforesaid terms.
No order as to costs.
(P.B. MAJMUDAR, J.)
(SMT. R.P. SONDURBALDOTA,J)
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