Law Web: Whether the court can pass decree for judicial separation in petition for divorce by mutual consent?

The provisions contained in Section 13-B of the Act, 1955 does

not provide for existence of a ground like the ones contained in

Section 13 for grant of divorce by mutual consent. There need

not be a serious dispute between a married couple for seeking

a divorce by mutual consent. It may happen in a given case that

there is no quarrel or dispute between the couple but yet their

actions and behaviour are not compatible with each other for

living a happy and peaceful married life, therefore, they may

seek divorce by mutual consent. If an application is otherwise

duly constituted and properly presented before the Court, it is

not for the Court to search for a ground or a reason, which has

compelled the parties to seek divorce by mutual consent.

11.Having regard to the fact that the parties presented the

application under Section 13-B by appearing before the trial

Court on 13.3.2018 and thereafter, again appeared on 7.4.2018,

27.10.2018, 4.12.2018 and 12.12.2018, the trial Court should

have passed the decree of divorce by mutual consent instead

of decree for judicial separation. {Para 10}

HIGH COURT OF CHHATTISGARH, BILASPUR

FAM No. 153 of 2019

Smt. Sandhya Sen Vs Sanjay Sen

DB.: Hon'ble Mr. Justice Prashant Kumar Mishra

Hon'ble Mr. Justice N.K. Chandravanshi

Order On Board by Prashant Kumar Mishra , J.

Dated: 6/4/2021

1. Heard.

2. This is an appeal challenging the decree of judicial separation

passed by the trial Court in Civil Suit No.198/2018 vide

judgment dated 12.12.2018 in the proceedings for grant of

mutual divorce under Section 13-B of the Hindu Marriage Act,

1955 ( in short “the Act, 1955”).

3. The parties were married at Durg on 20.2.2017. However, they

remained together only for 2 days and thereafter, have never

lived as husband and wife. After one year of the marriage, they

preferred a joint application dated 13.3.2018 for divorce by

mutual consent. The application was signed, verified and

supported by both the parties by filing their respective

affidavits. They were examined before the trial Court after

completion of 6 months cooling off period. In their deposition

also, they stood by their decision to seek divorce by mutual

consent, however, the trial Court has refused to pass a decree

of divorce by mutual consent and has instead passed a decree

for judicial separation for a period of one year.

4. The respondent has not entered appearance despite service of

notice.

5. Learned counsel for the appellant submits that there being no

defect in the application or in the procedure for moving such

application for grant of divorce by mutual consent, the trial

Court should have allowed the application.

6. We have heard learned counsel for the appellant and perused

the record.

7. While granting a decree for judicial separation in place of a

decree of divorce by mutual consent, the trial Court has

referred to the provisions contained in Section 13-A of the Act,

1955, which provides that in any proceeding under this Act, on a

petition for dissolution of marriage by a decree of divorce,

except in so far as the petition is founded on the grounds

mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of

Section 13, the court may, if it considers it just so to do having

regard to the circumstances of the case, pass instead a decree

for judicial separation.

8. The provisions contained in Section 13-A would attract only

when the trial Court is satisfied “having regard to the

circumstances of the case” that it considers it just to pass a

decree for judicial separation instead of mutual divorce. The

phrase “having regard to the circumstances of the case”

requires the trial Court to find out the circumstances which

compels it to pass a decree for judicial separation. Unless such

circumstances exist, the trial Court is not entitled to pass a

decree for judicial separation in a mechanical manner.

9. While passing the impugned decree, the trial Court has

observed that the period of their staying together is so short

that it is not possible that any serious dispute would have

arisen between them. In our considered view, the trial Court

has assumed that the dispute between them might not be of

such intensity which would force them to seek divorce by

mutual consent.

10.The provisions contained in Section 13-B of the Act, 1955 does