assigned the reasons clearly for not being able to live together is of no
relevance at all in a matter like this. It is not for the Court to probe
into such reasons and decide as to whether parties were justified in living
separately. That is not the scope of a petition filed under Section 13-B of
the Hindu Marriage Act. Therefore, we are of the view that the order of the
Family Court is misconceived. The Family Court has committed an error in
dismissing the joint petition for dissolution of marriage by a decree of
divorce for the reasons expressed by it.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.08.2016
CORAM
THE HON'BLE MR.JUSTICE K.K.SASIDHARAN
AND
THE HON'BLE MR.JUSTICE B.GOKULDAS
C.M.A.(MD).No.767 OF 2016
A.C.Mathivanan
B.Sathyabama .. Appellants/Petitioners
Citation:2016(5) ALLMR(JOURNAL)57
The Civil Miscellaneous Appeal is directed against the judgment and
decree, dated 05.03.2016, made in H.M.O.P.No.232 of 2015, whereby and
whereunder, the Family Court, Tirunelveli, dismissed the petition filed by
the appellants for divorce by mutual consent.
2. According to the appellants, their marriage was solemnised on
20.05.2013 as per Hindu rites and customs and due to certain
misunderstanding, they are living separately from 18.07.2014 onwards. Since
they were not able to live jointly as husband and wife and there is no
possibility of re-union, with free and mutual consent, a joint petition was
filed by them in H.M.O.P.No.232 of 2015 before the Family Court, Tirunelveli,
under Section 13-B of the Hindu Marriage Act, 1955, (hereinafter referred as
the Act) for dissolution of marriage by a decree of divorce.
3. Before the Family Court, the appellants were examined as PW1 and PW2
respectively and it has come out in their evidence that their marriage was
solemnised on 20.05.2013 and they were living separately from 18.07.2014.
4. The Family Court found that the parties have not mentioned the
reasons for their separation and hence, dismissed the joint petition for
divorce. Hence, the appellants are before us.
5. Today, when the matter is taken up for hearing, both the appellants
and their counsel are present. The appellants informed us that they were
living separately from 18.07.2014 onwards and there is no cohabitation
between them from 18.07.2014. The appellants have also filed an affidavit to
that effect today. The affidavit, dated 03.08.2016, filed by the appellants
is taken on record.
6. The learned counsel for the appellants in support of the relief
placed reliance on a decision reported in 1990-1-L.W. 64 (Sankaran.N. v.
S.Revathi).
7. The only reason assigned by the Family Court to dismiss the petition
is that the parties have not assigned the reasons clearly for not being able
to live together. Whatever may be the reason psychological or otherwise, it
stands established that the parties, namely the husband and the wife, have
not been able to live together and they have been living separately from
18.07.2014 onwards. The parties have mutually agreed that their marriage
should be dissolved. This is all Section 13-B of the Act requires and when
the said ingredient stands satisfied, it is not possible to throw out the
joint petition against the wishes of the parties.
8. Section 13-B of the Hindu Marriage Act, 1955 reads as follows:-
? 13-B. 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 Marriage Laws (Amendment) Act, 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 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."
9. Sub-Section (2) of Section 13-B only wanted the Court to satisfy as
to whether the marriage has been solemnised and that the averments in the
petition are true. In case the parties have been living separately one year
before the initiation of joint petition for divorce and there was no scope
for re-union, normally, the Court has no other option than to grant a decree
of divorce. The period of six months after the date of presentation is
prescribed with a view to give the parties reasonable time to have a re-look
in the matter. It is only when the matter is moved by the parties after six
months and before 18 months of initial presentation, jurisdiction is given to
the Court to analyse the materials and arrive at a satisfaction with regard
to the correctness of the statements made in the petition including the
solemnization of marriage. In case the marriage is a failure and the parties
wanted to put an end to the marital bond, the Court should respect the
sentiments and grant the divorce. It is not the intention of the legislature
to deny divorce, in spite of parties taking a conscious decision to part
ways. The Court cannot enlarge the scope of an enquiry under Sub-section (2)
of Section 13-B of the Hindu Marriage Act and act like a fact finding
authority. In short, once it is convinced that it would not be possible for
the parties to live together and that they have opted to dissolve the
marriage peacefully, the endeavour of the Court must be to grant a decree of
divorce rather than compelling the parties to live separately even
thereafter.
10. The reason assigned by the Family Court that parties have not
assigned the reasons clearly for not being able to live together is of no
relevance at all in a matter like this. It is not for the Court to probe
into such reasons and decide as to whether parties were justified in living
separately. That is not the scope of a petition filed under Section 13-B of
the Hindu Marriage Act. Therefore, we are of the view that the order of the
Family Court is misconceived. The Family Court has committed an error in
dismissing the joint petition for dissolution of marriage by a decree of
divorce for the reasons expressed by it.
11. The ingredients of Section 13-B of the Act having been made out and
substantiated by the appellants, we are inclined to grant a decree for
divorce.
12. The judgment and decree of the Family Court, Tirunelveli, in
H.M.O.P.No.232 of 2015 are set aside. We grant a decree for divorce
dissolving the marriage of the appellants.
13. The Civil Miscellaneous Appeal is allowed. No costs.
To
The Family Court,
Tirunelveli. .
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