1. This appeal by the husband is directed against the order dated Nov. 3, 1981, passed by the Civil Judge, Udupi, on an application for divorce filed under Section 13-B of the Hindu Marriage Act, 1955.
2. Kamalakshi-respondent is the wife of the appellant. They were married in the year 1972. They have got a female child born in Jan., 1976. After the child was born the couple did not live together. The wife lived in her parental house and husband as usual in his place of occupation. It is the case of the wife that her husband did not invite or take her, whereas the case of the husband is that his wife has had no desire to reunite.
3. In 1980, they presented a joint petition in the Court of Civil Judge, Udupi, for dissolution of marriage stating that they have been living separately; that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. The husband, along with the petition, has deposited Rs, 15,000/- as the agreed sum payable to his wife and child for their maintenance.
4. In support of the averments in the petition, the parties have also examined themselves. The wife in her evidence has stated that her husband had never forced her to sign the petition for divorce, but was telling that she was not mentally all right and she could not join her husband since he has not taken her to his house. On the basis of this statement, the Court below observed:
'From the testimony of P. W. 2 it is evident that she is willing to live with her husband provided he taken her and it looks as though he has not taken steps to take her to his house after the birth of the child. This would only go to show that it is possible for them to live together if P. W. 1 makes attempt to take P. W. 2 to his house.'
With this conclusion, the petition was rejected.
5. The parties have appealed to this Court for relief contending that the condition of the Court below was arbitrary and unsustainable.
6. The relevant provisions bearing on the question of relief to be granted to the parties are, Sections 13-B(1) and 23(1)(bb) of Hindu Marriage Act.
Section 13-B(1) provides:
'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, 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 they have mutually agreed that the marriage should be dissolved.'
Section 23(1)(bb) reads:
'In any proceeding under this Act, whether defended or not, if the Court is satisfied that --
(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence,
Then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.'
7. These two sections, upon analysis, demand proof on the following requirements:
(I) That the parties have been living separately for a period of one year or more;
(ii) that they have not been able to live together;
(iii) That they have mutually agreed that the marriage should be dissolved; and
(iv) That the consent of the parties has been obtained not by force, fraud or undue influence.
8. In Rayden on Divorce (12th Edn., page 221), it is stated:
Consent: Meaning --- 'Consent must mean true, voluntary consent, not so-called consent obtained by submission to force or threats or the like .........The point of time at which consent is relevant for the pronouncement of the decree is the date of the hearing of the petition'.
In other words, the consent must continue to decree and must be valid, subsisting consent when the case is heard.
9. The Court shall be satisfied that the consent of the parties has been obtained not by force, fraud or undue influence. Although, the relationships between the husband and wife is not recognised to be the special relationship that raises presumption in favour of undue influence, the Court should exercise a greater care and use its hind sight to find out whether the consent accorded by the weaker section is free and not by force, fraud or undue influence. The duty to ascertain this fact would be greater when the parties are not very much educated. Besides, when there is no contest between the parties, there would be little or no effective cross-examination. The Court, therefore, would not be unjustified if it closely questions the parties to ascertain the nugget of truth behind the impulse to get the marriage dissolved.
10. We gave our anxious consideration to the matter before us. We also asked the parties to be present in Court. We closely questioned them individually to ascertain their inherent feelings and also considered the material on record.
11. It seems to us that the Court below was in error in holding that the wife could not live with her husband because the latter has not taken her to his house. The parties, in our opinion, are not at all willing to live together. They have been living separately from 1976. There was no attempt by the wife to join the husband. Nor there was any attempt by the husband in that regard. The fact remains that they have not been able to live together from 1976. We are satisfied that the parties have reached a position where redemption is an impossibility. Their consent to the joint petition to dissolve the marriage was and is voluntary and true and any conclusion to the contrary would be non sequitur.
12. Our effort to effect a reconciliation has also not yielded any fruitful result. The wife is confident that she can take care of herself and also her child with the amount of Rs. 15,000/- paid by her husband. There is, therefore, no reason to withhold the relief prayed for.
13. In the result, the appeal is allowed. In reversal of the order of the Court below, there shall be dissolution of the marriage by a decree of divorce.
14. The amount of Rs. 15,000/- which is lying in deposit in the Court below shall be paid to the wife-respondent.
15. A copy of this shall be given to the parties, free of cost.
16. Appeal allowed.