Sharad Manohar, J.
1. This is in continuation of my earlier order dated April 11, 1985 which was passed, more or less, by consent. By this judgment, reasons are being briefly stated in connection with the said order.
2. This appeal arises out of the petition filed by the present appellant (hereafter, the petitioner) against his wife, respondent No. 1, for divorce on the ground of-
(a) desertion for a continuous period exceeding 2 years;
(b) cruelty; and
(c) adultery with respondent No. 2.
3. The respondent/wife denied all the three Allegations. She also contended that if there was any cruelty in the eyes of law practised by her or if she was held to be guilty of adultery as alleged, both the lapses had been condoned by the petitioner / husband.
4. On these pleas, issues were framed and evidence was led by the parties and after examination of the evidence, the trial Court came to the conclusion that the petitioner/husband has failed to prove all the three lapses, viz. desertion, cruelty and adultery. In view of these findings, he found it unnecessary to examine the question of condonation or conniyal alleged by the respondent/, wife. The petition for divorce was, therefore, dismissed by the learned Judge.
5. As stated in my order dated April 11, 1985, a statement was made by Mr. Apte, appearing for the petitioner /husband that he would not press the plea based upon the allegation of cruelty or adultery on the part of the respondent/ wife. He also requested the Court to delete the name of respondent No. 2 from the array of parties in the appeal. He advanced arguments only on the question of desertion and, as will be presently mentioned, made out a good case at least prima facie on the question of desertion on the part of the respondent/wife.
6. Mr. V.S. Gokhale appearing for the respondent/wife fairly stated before the Court that it would not be possible for him to support the finding relating to desertion arrived at by the trial Court, having regard to the nature of the evidence led by the parties.
7. However, neither of the learned advocates were prepared to have the appeal decided by consent and, probably, rightly so. As far as I could see, both the parties have realised the futility of keeping facade of the matrimonial tie. In fact, both of them had filed a petition for divorce by consent but, as will be presently pointed out, it happened to be dismissed merely because one of the parties viz. the wife, failed to turn up in the Court on the date fixed for final decree. The fact that the marriage has foundered irretrievably on the rocks of disharmony is patently evident and both the parties have long since realised that fact. But the fear appears to be lurking in the minds of both the learned advocates that a consent decree in this case may not be possible in view of the provisions of Section 23(1)(c) of the Act and that the same may be termed as a decree by collusion. I propose to reserve some portion of this judgment for examination of this question. But for the present, in view of the fact that both the learned advocates want a decree for divorce in invitum rather than by consent, I must examine the evidence led by the parties relating to the petitioner's plea of desertion by the respondent/wife. Let me set out, firstly, the petitioner /husband's case in this behalf. The marriage between the two took place on April 3, 1970. The petitioner has made grievance about the immediate conduct of the respondent/wife and it is his contention that there was a mental and psychological desertion by his wife even before August 1979. But the desertion that he has relied upon for the purpose of a decree for divorce starts, according to him, from August 15, 1979 in any event. Before July 1979, he was serving at Sangli, but was residing at Miraj. The respondent/wife was employed as a clerk in the Treasury Office at Kolhapur; but she used to come to the matrimonial home at Miraj on the weekends. For the sake of his petition, for divorce on the ground of desertion, the petitioner accepts the position that until August 15, 1979 she continued coming to Miraj and staying in the matrimonial home on the week-ends. But he was transferred from Miraj to Kudal with effect from August 15, 1979 and order of transfer was received by him in July 1979. His grievance is that immediately when he received the said transfer order, he told his wife to come and stay with him at Kudal and for that purpose he asked her to make an application to her office for her transfer to Kudal. According to him, she refused to agree to such arrangement and chose to live away from her husband, the petitioner, by continuing to reside at Kolhapur only. His contention is that he wrote her letters to come to Kolhapur and to get an order of transfer for that purpose. But the respondent/wife was obstinate and refused to respect the wishes of her husband. In fact she made it clear to him that she had no desire to continue matrimonial life with him and agreed to give a divorce to him. As will be presently pointed out, this part of the petitioner's case is readily acceptable because on October 16, 1980 both the husband and the wife in fact filed a petition in the District Court for divorce by consent. July 24, 1981 was the date fixed by the Court for passing a final decree in that behalf and both were supposed to remain present in the Court on that date. The petitioner/husband did remain present in the Court. But the respondent/wife, for the reasons best known to herself, just did not turn up in the Court, The learned Judge trying the petition took the view that in those circumstances the respondent/wife was not agreeable to take divorce by consent and hence, he dismissed the said petition.
8. However, according to the petitioner/husband, the desertion by his wife continued and the wife never came to the matrimonial home at any time thereafter with the result that, ultimately, the instant petition for divorce on the various grounds mentioned in the petition had to be filed by the petitioner husband on August 28, 1981. There can be, therefore, no dispute that the two spouses never had any matrimonial life with each other, at least from August 15, 1979 to August 28, 1981, which means that the statutory period of desertion of 2 years was over before the date of the suit. The fact that it was the wife who was away from her husband and that it was she who refused to come back to the husband is not in doubt. The only question that remains, therefore, is as to whether she remained away from the matrimonial home with the animus desertendi during that period.
9. For this purpose, the petitioner has adduced his own evidence, which leaves no room for doubt that not only that the respondent/wife refused to come back to the matrimonial home from August 15, 1979 onwards, but that he made efforts so that she should come and stay with him but that she turned down all his requests in that behalf. But in addition to his oral evidence, he has produced the correspondence between the parties. The first most important letter in this correspondence is dated January 21, 1980 (Exh. 28). The learned Judge, who dismissed the petition, has examined this letter in Para 15 of his judgment and even he has not failed to notice that the letter goes a long way to indicate that the respondent/wife was no more interested in the petitioner. No doubt in the letter she made a complaint that it was she who was the sufferer in this matrimonial transaction, physically as well as mentally. But it is to be noted that in the present proceedings it is no-where her contention that she was the recipient of the sufferings.
10. But the learned Judge has relied upon the last sentence in the said letter and has held on that basis that the letter does not indicate her intention to snap the matrimonial tie. She appears to have made some kind of complaint therein that no letter was written by her husband and that that was the reason why she was not coming back to the matrimonial home. It was on the basis of this lone sentence that the learned Judge has discarded the evidentiary value of this letter, Exh. 28. But what the learned Judge has lost sight of is, as seen by himself, that the petitioner/husband wrote not one but three more letters, Exhs. 35, 36 and 38, in fact registered letters, to her. The first one was on March 20, 1980 and the subsequent ones at the interval of one week thereafter. They were registered letters with A/D. The copies of the letters were produced. The genuineness of the letters was never denied. To none of these letters as much as a reply was given by the respondent. The effect of the willingness expressed by the respondent/wife to come back to the matrimonial home upon receipt of the husband's letter is, therefore, washed out and all that remains is that by the letter, Exh. 28, the respondent/wife had plainly communicated her desire not to have any truck with the petitioner/husband. To my mind, the error of the learned Judge lies in the fact that he has failed to apply his mind to the cumulative effect of all these 4 letters, Exhs. 28, 35. 36 and 38.
11. While dealing with these three letters, the learned Judge has also observed that coming and staying with the petitioner/husband at Kudal would mean that the wife would have to leave her job in the Treasury office and that both the parties were not desirous of bringing about such a position. The learned Judge has made a two-fold error in this reasoning. In the first place, the petitioner has brought on record abundant evidence to show that if the wife had made an application to the Government for her transfer from Kolhapur to Kudal, she would have got that order of transfer in her favour. It would be a different thing if she had made such an application and had failed to get an order in her favour from the Government in pursuance of that application. But as stated by the learned Judge himself, it is not as if that she made such an application and that her application turned fruitless. The Government Rule is brought on record to show that if she had made an application, it would have been granted. But the point is that she never made any such application. This certainly reflects upon her intention not to stick fast to the matrimonial tie.
12. Secondly, the learned Judge has lost sight of the fact that whether she succeeds in getting the transfer or not, she would have at least come once, twice or thrice during the period of those 2 years to reside with her husband at Kudal. When he was staying in Miraj, she used to come to him from Kolhapur to stay with him at Miraj during the week-ends. It may be that when he was at Kudal she could not have come every week. But she could have come at least once in a month or once in two months. But the fact is that she never came at any time within the period of 2 years.
13. In order to obviate the decree for divorce, she has no doubt stated that it was the husband who used to come now all the way to Kolhapur. But the learned Judge himself observed that the contention is baseless and she could not lead any evidence on that point. In fact she is disbelieved by the learned Judge on that point.
14. There are quite a few other circumstances on record which go to show that the wife lived away from her husband in the instant case, not with any animus revertendi but with clear animus desertendi. The most important among them in this case is that during this very period she joined with the petitioner to file an application for divorce by consent. In the context of the facts of the present case, this gesture on her part evidences nothing but animus desertendi on her part. If such an animus continued for 2 years, the result must follow that the petitioner is entitled to a decree for divorce on this ground at least,
15. I, however, cannot part with this judgment before making two observations.
16. In the first place, the petitioner should have been held entitled to a decree for divorce not only in this petition, but also on July 24, 1981 when he was present in the Court in the proceedings arising out of the petition for divorce by consent. The learned Judge seems to have been of belief that if one of the spouses remain absent, he had no jurisdiction to pass such a decree for divorce in favour of the spouse who attends the Court. In view of the judgment of this Court decided by B. C. Gadgil J. in Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe  M.LJ. 308 : (1984) 86 Bom. L.R. 184, this view is clearly erroneous.
17. Secondly, I do not see any reason why a decree for divorce by consent cannot be passed by the Court even apart from the provisions contained in Section 13B of the Hindu Marriage Act. In the instant case, both the learned advocates agree that a decree could be passed in this case on the ground of desertion. In fact, the petitioner/husband has withdrawn the allegations of cruelty & adultery. I see no reason why both of them could not have applied to the Court for a consent decree for divorce under Order 23 Rule 3 of the Civil Procedure Code. Such a decree could not have been passed by the Court before the advent of Section 13B on the statute book, because till that time the provision of Section 23(1)(c) was having a clear over-riding effect upon the Court's power to pass a compromise decree for divorce under Order 23 Rule 3 of the Civil Procedure Code. Agreement to take divorce could not have been looked upon as a 'lawful agreement' till the enactment of Section 13B in the Act providing divorce by consent. But after the enactment of Section 13B, it is futile to contend that agreement to take divorce is not a lawful agreement. If the two spouses agree to take divorce u/s. 13B of the Hindu Marriage Act by consent, they can likewise agree to take divorce as per the provisions of Order 23 Rule 3 of the C.P.C., because, now, after the statutory acceptance of the concept of divorce by consent, it has got to be held that agreement to divorce is a lawful agreement. It is true that the Court is required, under Section 23(2) of the Act to do its best to bring about re-conciliation between the parties. But the agreement to take divorce under Order 23 Rule 3 can be perfectly reconciled with the provisions of Section 23(2) of the Hindu Marriage Act. AH that the Court would be required to do would be to try, in the first place, to bring about a reconciliation and if that was not possible, in the second place, to give sufficient time to both the spouses, to sleep over the matter as one may so say to retrace their steps. The continuation of Section 23(1)(c) in the Act purporting to put an embargo upon divorce by collusion cannot be a bar to the Court's jurisdiction under Order 23 Rule 3 of the Code because, to my mind, the continuation of clause (c) of Section 23(1) of the Hindu Marriage Act is an anachronism after the statutory acceptance of the concept of divorce by consent. If a husband files a petition against his wife for divorce on the ground of desertion, the Court is required, under said Section 23(1)(c) of the Act, to satisfy itself that the petition is not presented or prosecuted in collusion with his wife. But it will be noticed that this provision was there on the statute book even before Section 13B was brought on the statute book and what is lost sight of is that Section 13B and Section 23(1)('c) are mutually inconsistent. If any party can bring about a result by consent, it is futile to say that such an agreement cannot be brought about by collusion. The concept of collusion spells that that which could not be brought about by consent cannot be brought about by indirect means. But when the given result can be brought about by consent, it is contradiction in terms to provide that the same result cannot be brought about by collusion, because describing such step of the two spouses by the word 'collusion' is plain misnomer. To my mind, the continuance of said Section 23(1)(c) is the result of legislative inadvertance and the said section has got to be regarded as dead letter because the legislature has itself provided, by subsequent amendment of the Act bringing Section 13B on the statute book, that two souls can mutually agree to part from each other amicably without bitterness and without acrimony.
18. The conclusion is that it would have been open for the learned advocates to move this Court for divorce by consent and if this Court had found that there was genuine agreement between the parties on this question, this Court would not have hesitated in granting to the parties divorce on that account under Order 23 Rule 3 of the C.P.C.
19. In the result, the appeal succeeds. The decree passed by the lower Court is set aside: and the marriage of the petitioner with the respondent is hereby dissolved by a decree for divorce.
20. However, in the circumstances of the case, there shall be no order as to costs throughout.