In the instant case, the family court has not even looked into whether the parties were residing separately for more than one year in order to accept the petition filed for grant of a decree of divorce under Section 13B of the Act. If the family court had recorded the statements of the parties in order to find out the correctness of the petition averments, the appellant would have got an opportunity to depose before the family court about the truth of the matter. On account of the mistake committed by the court below in not recording the statements of the parties, the appellant, being a lady, who is not much educated and who has no sufficient worldly knowledge, is made to suffer. We have seen that a sum of Rs 1.00 lakh stated to have been deposited in the name of the child. When the appellant is having no independent income of her own to maintain herself and the child and when the respondent is working as a lecturer, the court below is duty bound to consider whether Rs 1.00 lakh as permanent alimony is sufficient and proper. Considering the income and status of the respondent, the said amount would be quite inadequate for maintenance of the child and its education and for its future. The trial court has not even looked into these vital aspects. It is the duty of every court to find out the correctness and veracity of the contents of the petition before granting a decree of divorce.
Karnataka High Court
Smt. Sreelakshmi vs Sri Lakshminarayan S Hegde on 23 September, 2014
Citation; AIR 2015 (NOC)459 Karnataka
The legality and correctness of the order passed by the IV Additional Principal Judge, Family Court, Bangalore in MC No 266 of 2013 dated 6-8-2013 is called in question in this appeal by the appellant-wife.
2. Heard the learned counsel for the parties.
3. The facts leading to this appeal are that: The appellant is the wife of the respondent and their marriage was solemnized on 9-12-2010 at Sri Jayarama Seva Mandali, Jayanagar 8th Block, Bangalore. The appellant has no parents. She was brought up by her grandmother. She has studied up to tenth standard. The respondent, at the time of the marriage, was working as teacher at Sri Sri Ravishankar Vidya Mandir, Udayapura, Bangalore. They lived together happily. In the month of August, 2011, the appellant became pregnant. The respondent is a native of Keremane village in Siddapur taluk. Since there was nobody to look after the appellant, the appellant was sent for confinement to Keremane village, where the mother of the respondent is residing. Later, the appellant gave birth to a male child on 24-4-2012 at Shreyas hospital in Siddapur taluk. The naming ceremony of the child was performed on 4-5-2012 at the native village of the respondent.
4. In this background, the petition in MC No 266 of 2013 came to be filed under Section 13B of the Hindu Marriage Act, 1955 [for short, the Act] stating that on account of incompatibility it is not possible for them to live together and that they have decided to take a decree of divorce by way of consent. The matter was posted for appearance of parties on 12-7-2013 and thereafter was sent for conciliation before the mediation centre on 5-8- 2013. Based on the settlement said to have been arrived at before the mediation centre, the family court judge has granted the decree of divorce on 6-8-2013. Challenging the legality and correctness of the same, the present appeal is filed.
5. According to the appellant, the respondent by playing fraud on her, only with an intention to marry a lady by name Kavitha G M, with whom he had love earlier to the marriage with the appellant, took the appellant to one K H Pradeep, Advocate. On the instructions of the respondent, a petition came to be filed and the appellant, without knowing the consequence, signed the papers. According to her, she was not even aware of the petition filed for grant of a decree of divorce by way of consent. She contends that there was no need or necessity for her to file a petition to seek grant of a decree of divorce under Section 13B of the Act, since both of them were happily living together and blessed with a child on 24-4-2012 and the namingceremony of the child was performed on 4-5-2012. According to appellant, the contents of the petition filed under Section 13B of the Act are all incorrect, since the parties never resided separately for more than one year as required under Section 13B(1) of the Act. It is the case of the appellant that without explaining the contents of the petition, by playing fraud, the respondent has managed to obtain a decree of divorce.
6. She further contends that even the court below has committed an error in not recording the statements of both parties, as required under the law. It is for the judge to record the statement of each of the parties and find out the veracity and correctness of the averments made in the petition. Without doing so, based on the report of the mediation centre, a decree of divorce has been granted, which is unknown to law.
7. Learned counsel for the respondent-husband, supporting the order of the family court, contends that the respondent has not played any fraud in getting the impugned order and therefore the appeal is liable to be dismissed.
8. Having heard the learned counsel for parties, the only point to be considered by us in this appeal is "whether the decree of divorce granted by the family court is in accordance with the provisions of Section 13B of the Act?"
9. The undisputed facts in this appeal are that: The marriage between the parties was solemnized on 9-12-2010 and they lived together happily at Bangalore. In the month of August, 2011, the appellant conceived and the respondent sent her to his native place during her advanced stage of pregnancy, where his mother is residing. Admittedly, appellant gave birth to a male child on 24-4- 2012 in a hospital in Siddapura taluk, which is just 2 kms from the native village of the respondent. The respondent is also not disputing that after the delivery of the child, theappellant stayed in the house of respondent at Keremane and the naming ceremony was performed on 4-5-2012.
10. When these facts are not in dispute, it has to be held that the parties have lived together without any sort of incompatibility at least till 4-5-2012. For the sake of arguments, the court were to accept the contention of the respondent that bickering arose between the parties after the naming ceremony of their child, one year period is to be reckoned from June 2012. The petition was filed for grant of a decree of divorce on 15-1-2013, which is within eight months from the date of naming ceremony of the child. Section 13B of the Act 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 solemnized before or after the commencement of the Marriage 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 than 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 solemnized 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.
A plain reading of the provisions of law, it is clear that in order to file a petition under Section 13B of the Act, the parties are required to live separately on account of incompatibility for a period of one year prior to the presentation of the petition and thereafter the parties are required to wait for a period of six months and subsequently, the court is bound to find out the correctness of the petition. If there is compliance with the provisions of Section 13B of the Act, it is for the court to grant a decree of divorce in favour of the parties.
11. In the instant case, the family court has not even looked into whether the parties were residing separately for more than one year in order to accept the petition filed for grant of a decree of divorce under Section 13B of the Act. If the family court had recorded the statements of the parties in order to find out the correctness of the petition averments, the appellant would have got an opportunity to depose before the family court about the truth of the matter. On account of the mistake committed by the court below in not recording the statements of the parties, the appellant, being a lady, who is not much educated and who has no sufficient worldly knowledge, is made to suffer. We have seen that a sum of Rs 1.00 lakh stated to have been deposited in the name of the child. When the appellant is having no independent income of her own to maintain herself and the child and when the respondent is working as a lecturer, the court below is duty bound to consider whether Rs 1.00 lakh as permanent alimony is sufficient and proper. Considering the income and status of the respondent, the said amount would be quite inadequate for maintenance of the child and its education and for its future. The trial court has not even looked into these vital aspects. It is the duty of every court to find out the correctness and veracity of the contents of the petition before granting a decree of divorce.
12. Be that as it may, when the petition filed by the parties under Section 13B of the Act is not in compliance with the mandatory provisions of Section 13B(1) of the Act, as the parties did not live separately for more than one year prior to the date of filing of the petition, we are of the opinion that the decree of divorce granted by the court below under Section 13B of the Act is liable to be set aside.
13. Accordingly, this appeal is allowed and the order passed by the IV Additional Principal Judge, Family Court, Bangalore in MC No 266 of 2013 dated 6-8-2013 is set aside. Since the petition filed by the parties was not in conformity with the provisions of Section 13B of the Act, the petition filed by the parties in MC No 266 of 2013 is hereby dismissed by setting aside the order dated 6-8-2013 passed by the court below. Parties to bear their costs.
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JUDGE Sd/-
JUDGE *pjk
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