JUDGMENT
J.N. Bhatt, J.
1. By this appeal under Section 28(1) of the Hindu Marriage Act 1955 (‘Act’ for short hereinafter), the appellant original petitioner has challenged the judgment and decree passed in Hindu Marriage petition No. 3 of 1988 on 21/3/1991 by District Court, Valsad, Navsari.
2. A few relevant facts giving birth to the present appeal may, shortly, be stated at the outset.
3. The present appellant is the original petitioner-husband and the respondent is the original petitioner No. 2-wife, who were hereinafter adressed to as ‘Husband’ and ‘wife’ for the sake of convenience and brevity. Both of them made a joint application under Section 13-B of the Act for mutual divorce. The parties arc Hindu. Their marriage was performed on 27/2/1977 as per Hindu rites, at Navsari. Two daughters were born out of the said wedlock. One daughter Niyanta was born on 18/6/1978 and second daughter Nikita was born on 5/4/1980. Both of them, i.e. husband and wife, are serving at different places. There was differences of opinion between the spouses which ultimately culminated into decision to take divorce by mutual consent. It was therefore decided to resort to Section 13-B of the Act.
4. The custody of minor daughters has been with wife. The husband had filed divorce petition against the wife at Baroda District Court being Hindu Marriage Petition No. 86/83, which came to be dismissed, on 16/9/1986. The husband had carried it further by filing an appeal in the High Court. The wife had preferred Criminal Misc. Application No. 54/84 in the Court of Navsari for the maintenance of her minor daughters, under Section 125 of the Code. The maintenance was awarded to both the daughters. The Revision Application No. 76/85 and 77/85 came to be preferred in the Sessions Court, at Navsari, against the order of maintenance to the daughters. Both the revision applications were dismissed. The wife had carried the matter further in the High Court, challenging the decision in the revision. In the meantime the husband had preferred an application in the District Court at Navsari inter alia, praying for custody of both the minor daughters against the wife on 15/6/1987. The aforesaid series of litigations between the spouses would indicate that their relations were not only not cordial but very much strained. Thereafter, with the aids of well-wishers, friends and relations two meetings were held on 29/11/1987 and 6/12/1987, wherein the problems faced by the spouses were discussed and threshed out. Since it was not possible to bring about reconciliation and restore the cordial relationship, it was decided to permanently separate from each other. In short, it was decided by both the spouses to recourse to mutual divorce under the provisions of Section 13-B of the Act. It was mutually decided and simultaneously certain terms and conditions were also settled.
5. Pursuant to the settlement between the parties, the custody of the minor daughters would remain with the wife, (2) The husband paid Rs. 40,000/- to the wife in cash and 10 Tolas of golden ornaments towards the maintenance, marriage expenses etc., of the minor daughters. The husband was exonerated for any liability with regard to the maintenance, marriage expenses etc., of the minor daughters. No future maintenance right was reserved for wife as she was serving. Husband had returned the presents, ornaments, clothes etc., received by him at the time of the marriage, to the wife. On the aforesaid terms and conditions it was decided thereby invoking the provisions of Section 13-B of the Act and to obtain divorce by mutual consent. Accordingly a petition was filed on 8/12 and on the same day the decree for custody of minors, in favour of wife was passed. During the pendency of the joint petition for divorce by consent, wife submitted an application Ex. 7 on 11/10/1988-declaring that she is withdrawing her consent for decree of divorce on mutual consent. The husband filed his objections as per Ex. 10 against the said application Ex. 7.
6. In view of the aforesaid developments in the course of the proceedings before the District Court, Valsad, at Navsari in Hindu Marriage Petition No. 3 of 1988, the Learned District Judge raised preliminary issue, at Ex. 14, which is as follows :
“What is the effect of consent withdrawal purshis Ex. 7 of the petitioner No. 2 — wife in the petition ?”
7. Since it was a question of law preliminary issue was raised. No evidence was lead by the parties. After hearing Learned Advocates of the parties, Learned District Judge reached the conclusion that petition was liable to be dismissed as wife had withdrawn her consent for decree of divorce on mutual consent. In short, the said petition under Section 13-B of the Act being Hindu Marriage Petition No. 3/1988 came to be dismissed on 21/3/1991.
8. Being aggreived by the said judgment and decree the original petitioner No. 1 husband has now come up before this Court challenging its legality and validity by filing this First Appeal by invoking provisions of Section 28(1) of the Hindu Marriage Act.
9. Having closely examined the impugned judgment and decree and the facts and circumstances, in the light of the provisions of. Section 13-B of the Act, this Court is of the opinion that the present appeal is without any substance. It would be necessary at this stage to refer the provisions of Section 13-B of the Act, which prescribes provision for divorce by mutual consent reads as under:
“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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have not been separately for a period of one year or more, that they have Hot been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the notion 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 solemnized 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.”
10. The controversy in the present appeal is circumscribed to a very narrow compass. The question which is placed in the focus is as to whether it is open to one of the parties to a petition under Section 13-B of the Act, at any time till the decree of divorce is passed, to withdraw the consent given to the petition. On this aspect there were conflicting and divergent views of different High Courts. Subsequently, this aspect is very well settled by the apex Court Sureshthadevi v. Omprakash, reported in Judgment Today 1991 (1) SC page 321. In this decision Supreme Court had considered the conflicting and divergent decisions of various High Courts, which are as follows :
1. Smt. Chander Kanta v. Hans Kumar and Anr., AIR 1989 Delhi 73.
2. K.J. Mohanan v. Jeejabai, AIR 1988 Kerala 28.
3. Harcharan Kaur v. Nachhattar Singh, AIR 1988 Pun. & Har. 27.
4. Santosh Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128.
5. Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, AIR 1984 Bom. 302.
6. Meena Dutta v. Anirudh Dutta, 1984 II DMC 388 (MP).
11. After having considered the said decisions of various High Courts the Supreme Court while interpreting the provisions of Section 13-B of the Act held that a party to the petition for divorce by mutual consent can unilaterally withdraw the consent at any time till the passing of divorce decree. It is held in the said decision that it will be apparent that the following the petition with mutual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interrognum was obviously intended to give time and opportunity to the parties to reflect on the move and seek advice from relations and friends. In this transitional period one of the parties may have a second though and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the Section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi has proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties…… if the petition is not withdrawn in the meantime, the Court shall……pass a decree of divorce….. It is further held by Supreme Court in the said case that what is significant in this provision is that there should mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdicrion to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the parties. Such a decree cannot be regarded as decree by mutual consent. The aforesaid observations unequivocally attract its ratio to the facts of the present case. The Learned District Judge has rightly relied on the said decision of Supreme Court. The finding of the District Judge is fully justified. Since the aforesaid decision is fully applicable to the facts of the present ease, this matter is disposed of at the admission stage.
12. The Learned Counsel for the appellant Mr. Trivedi, vehemently contended that the wife has taken undue advantage of the settlement and has obtained all the benefits of compromise. Therefore it was alternatively contended that the respondent should be directed to return the benefits that she availed of for getting divorce by mutual consent, at least, by invoking inherent powers of this Hon’ble Court under Section 151 of the Civil Procedure Code. A plain reading of Section 151 of the Civil Procedure Code would run counter to the proposition advanced by Learned Counsel Mr. Trivedi. No doubt, he has made fervent appeal to the heart and not to the head. At this stage, therefore, it will be open for the husband to recourse to appropriate legal remedies that may be available to him under the law for the return of those items. No provision is indicated or pointed out at either under the provisions of Hindu Marriage Act or any other Act which would empower this Court to grant such a direction or grant the relief in favour of the husband. In fact, it is nothing but polishing a brass when the entire ship is sinking.
13. The learned Counsel for the appellant Mr. Trivedi has also seriously contended that the Learned District Judge should not have raised the preliminary issue and disposed of the matter on merits as it cannot be said to have fallen within the ambit of Order XIV Rule 2 of C.P.C. Prima facie this submission appears to be captivating but not convincing. Order XIV Rule, of the Civil Procedure Code, at this stage, would be expedient to refer. The provisions of Section 21 of the Hindu Marriage Act prescribes provision for the applicability of the provision of Civil Procedure Code, which reads as under:
“21. Application of Act V of 1908 : — Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf all proceedings under this. Act shall be regulated, as may be, by the Code of Civil Procedure, 1908 (5 of 1908).”f
14. The attention of this Court is also invited to the provisions of Section 13-B(2) of the Hindu Marriage Act, which reads as under :
“(2) On the notion 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 decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
15. Conjoint reading of the aforesaid provisions would undoubtedly go to show that the Court shall lose jurisdiction to decide such a petition in the event of withdrawal of consent by one of the parties. This proposition is also settled in the aforesaid decision of the Supreme Court (Smt. Sureshta Devi v. Om Prakash (supra). It is clearly held in the said decision that if there is no mutual consent even at the time of enquiry Court gets no jurisdiction to make decree for divorce, Secondly, in view of the provisions of Section 21 of the Hindu Marriage Act strict principles of the code as applicable to other civil proceedings will not be applicable to the proceedings under the Hindu Marriage Act. Thirdly, Order XIV. Rule 2 provides that the Court can raise an issue of law as preliminary issue it can try that issue first if that issue relates to the jurisdiction of the Court. Having withdrawn the consent by one of the spouse the very basis of passing of decree of divorce on consent under Section 13-B of the Act is lost, and since this aspect pertains to the jurisdiction of the Court. Alternatively it was also rightly open to the Trial District Court to raise such an issue as preliminary issue and dispose it of in accordance with law. The said contention of Learned Counsel Mr. Trivedi has no substance and is rejected.
16. Since this Court broadly agrees with the impugned judgment and decree passed by the Learned District Judge, it would not be necessary to reiterate the reasons on which the petition under Section 13-B of the Act is dismissed.
17. In the facts and circumstances of the case this appeal is required to be dismissed being meritless and covered by the decision of the apex Court of the land. Consequently the appeal is dismissed. No Costs.
