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Nachhattar Singh Vs. Harcharan Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 100M of 1985
Judge
Reported inAIR1986P& H201
ActsHindu Marriage Act, 1955 - Sections 13B and 13B(2)
AppellantNachhattar Singh
RespondentHarcharan Kaur
Excerpt:
.....bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence..........solemnized and that the averment 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 reading of this sub-section would show that the scheme of s. 13b of the act does not envisage withdrawal of consent by one party. the petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. six months after the date of the presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties, the court has to satisfy itself, after hearing the parties and after making such inquiries as it thinks fit, that the petitioners was in fact present by both the parties to the marriage, that they.....
Judgment:

1. A petition under S. 13B of the Hindu Marriage Act, 1955, (hereinafter called ' the Act') for dissolution of marriage by a decree of divorce was presented by Nachhatar Singh and his wife Harcharan Kaur together on the ground that they have mutually agreed that the marriage should be dissolved. This petition was filed on July 24, 1984. The trial Court adjourned the petition to Jan 28, 1985, in view of sub-sec (2) of S. 13B of the Act which envisages that the marriage can be dissolved in such proceedings not earlier than six months and not later than eighteen months after the date of presentation of the petition. On Jan 28, 1985 the case was adjourned to Feb. 6, 1985 the wife Harcharan Kaur made a statement that the petition be filed. Consequent upon this statement the trial Court dismissed the petition on the ground that one of the parties is not willing to the dissolution Nachhatar Singh has filed the present appeal against this order.

2. The impugned order suffers from legal infirmity and is, therefore unsustainable. Sub-section (2) of S. 13B of the Act is in the following terms:--

'(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-sec (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 averment 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 reading of this sub-section would show that the scheme of S. 13B of the Act does not envisage withdrawal of consent by one party. The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after hearing the parties and after making such inquiries as it thinks fit, that the petitioners was in fact present by both the parties to the marriage, that they have been living separately for a period of one year or more and that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all the other conditions mentioned in sub-sec (1) of S. 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case without making an inquiry under sub-sec.(2) the trial Court has dismissed the petition as withdrawn which could not be done merely on asking of one party.

3. For aforesaid reasons, this appeal is allowed, the impugned order of the trial Court is set aside and the case back to the trial Court to make inquiry envisaged by sub-sec.(2) of S. 13B of the Act and then decide the petition for divorce by mutual consent in accordance with law. The parties have been directed to appear before the trial Court on Oct. 7, 1985. The records be sent to the trial Court immediately.

4. Appeal allowed.


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