IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:01/03/2002
CORAM
THE HONOURABLE MR. JUSTICE P.SATHASIVAM
C.R.P.NO. 232 OF 2002
1.K.S.Subramanian
Son of K.S.Sankaran
5, Second Cross Street
Ramappa Nagar, Perungudi
Chennai 96
2.V.Vasanthi Devi
D/o P.V.Dass
2A Palace View apartments
88, santhome High Road
R.A.Puram,
Chennai 28 ..Petitioners
- Vs -
NIL ..Respondent
!For petitioners: Mr.K.Chandru
Senior counsel for
Mr.R.Yashod Varadhan
Petition is filed under Article 227 of the Constitution of
India against the order dated 24.9.2001 in H.M.O.P.No.58 of
2001 on the file of Sub-court, Poonamallee.
:ORDER
Aggrieved by the order of the Subordinate Judge,
Poonamallee dated 24.9.2001 made in H.M.O.P.No. 58 of 2001
dismissing the joint petition filed for divorce by consent
under Section 13 B of the Hindu Marriage Act, 1955, the
petitioners have preferred the above revision under Article
227 of the Constitution of India. The petitioners have filed
the said O.P. before the Subordinate Court, Poonamallee under
Section 13 B for divorce by mutual consent. In the said
petition, it is stated that the petitioners got married on
22.9.1960 at Dindigul as per customary rituals under Hindu
Marriage Act, 1955. After the said marriage, they lived
together at various places and they last resided at No.5, 2 nd
Cross Street, Ramappa Nagar, Perungudi, Chennai 600 096 which
is the house built and owned by the first petitioner. They
have one son and one daughter born out of their wed lock. The
son is aged 39 years and is married and is now teaching at
Canada in a University and is well settled. Their daughter is
aged about 31 years who is also highly qualified and is
married to the citizen of U.S.A. and is also settled in
U.S.A. It is further stated that the petitioner could not
live with each other as serious differences have crept in
between them on many personal and other issues which could not
be reconciled. Therefore, the second petitioner took up a
separate residence at Flat 2 A Palace view Apartments, 88 ,
Santhome High Road, R.A. Puram, Chennai 600 028 and started
living from that place since 15.1.2000 .
2.Ever since the second petitioner took up separate
residence, the petitioners have had deep discussions and
deliberations and found that they are not compatible to each
other and they cannot continue the marriage any more. The
Petitioners have been living separately for a period of more
than one year prior to the presentation of this petition. The
first petitioner is a retired official from the Asian
Development Bank at Manila and is a pensioner and the second
petitioner is a retiree from the Tamil Nadu Government service
and she is also a pensioner. Both of them do not have any
liability to maintain each other and they have no claim or
obligation to be performed by any one to the other petitioner.
3.In these circumstances they filed a petition under
Section 13 B of the Hindu Marriage Act to dissolve their
marriage mutually.
4.After taking me through the various averments made
in the joint petition, their statements before the Court and
the relevant provision namely Section 13 B of the Hindu
Marriage Act, Mr.K.Chandru, learned Senior Counsel would
contend that inasmuch as the petitioners have satisfied and
complied with the mandatory provision, the Subordinate Judge
ought to have granted divorce by consent as claimed by the
petitioners.
5.I have already referred to the necessary averments
made in the joint petition filed by both the parties. Apart
from the assertion that they were living separately for more
than a period of one year prior to the filing of the present
petition, they also highlighted that their misunderstanding
and difficult to rejoin. They also stated that they are not
depending on any one and they are getting sizeable income by
way of retirement benefits. Having seen the necessary
averments in the petition and their statements as P.W.1 and
P.W.2, the learned Subordinate Judge by noticing that both of
them chatting with each other prior to their evidence by
suspecting their bona fides dismissed the said application.
The reasoning in the conclusion of the learned Subordinate
Judge cannot be sustained for the following reasons.
5.In this regard it is relevant to note Section 13 B
which enables the parties to seek for divorce by mutual
consent.
“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 been
living separately for a period of one year or more, that they
have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.”
It is clear from sub-section (1) of Section 13 B that a
petition for dissolution of marriage by a decree of divorce
can be presented 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. They must also allege and
prove that they have mutually agreed that the marriage should
be dissolved.
6.As stated earlier, the petitioners have fulfilled
the conditions prescribed for divorce by mutual consent as
provided in sub-section (1 ) of Section 13 B.
7.Learned Senior counsel for the petitioner has also
brought to my notice the Division Bench decision of this Court
reported in 1990 (1) L.W. 64 K.SANKARAN V. S. REVATHI. In
this case, the parties therein filed a joint petition under
Section 13 B of the Act for dissolution of marriage by decree
of divorce. The Principa l Family Court, after entertaining
the petition , adjourned it to a date six months later and on
the adjourned date, on the parties appearing made efforts to
reconcile difference between the parties. Since the efforts
did not succeed the Family Court proceeded to examine the
parties. Both the parties were examined as P.W.1 and P.w.2 .
They explained the marriage and the subsequent development.
After noting their evidence the Principal Family court found
that the incredients with reference to the parties not being
able to live together is not satisfied even though the other
ingredients contemplated under Section 13 B do stand satisfied
and in this view the Principal Family Court dismissed the
petition for dissolution of marriage by a decree of divorce.
Against the said order the parties therein filed an appeal
before the Division Bench of this Court. After considering
the materials placed and Section 13 B the Division Bench has
come to the following conclusion.
“While this being so, we are not able to appreciate the
reasoning of the Principal Family Court that there is lack of
substantiation of this ingredient by the parties. The
Principal Family Court adversely comments upon the
non-disclosure of the reason by the respondent with reference
to her unwillingness to live with the appellant. Whatever may
be the reasons, psychological or otherwise, it stands
established that the parties, viz., the husband and the wife,
have not been able to live together and they have been living
separately for a period of more than a year and they have
mutually agreed that the marriage should be dissolved. This
is all S.13-B of the Act requires and when the said ingredient
stands satisfied it is not possible to throw out the joint
petition. That they were living together till 6.3.1987 is of
no relevance at all in this matter. We are of the view that
the Principal Family Court committed an error in dismissing
the joint petition for dissolution of marriage by a decree of
divorce for the reasons expressed by it. The ingredients of
S.13-B of the Act having been made out and substantiated we
are obliged to countenance the prayer for dissolution of
marriage by a decree of divorce. Accordingly, this civil
miscellaneous appeal is allowed, the judgment and decree of
the Principal Family Court in M.O.P.No.586 of 1988 are set
aside and we grant a decree for divorce dissolving the
marriage of the appellant and the respondent.”
8.The said conclusion of the Division Bench is
directly applicable to our case. I have already referred to
the claim of both parties as in the joint petition and in
their statement as P.W.1 and P.W.2. As observed by the
Division Bench whatever may be the reasons or psychological or
other wise, it stands established that the parties namely the
husband and wife have not been able to live together and they
have been living separately for a period of more than one year
and they have been mutually agreed that the marriage should be
dissolved.
9.Here, in our case, both of them have established and
satisfied the incredients of Sub-Section(1) of Section 13 B.
When the said incredients stands satisfied the Court below is
bound to accept the petition and grant relief of divorce by
mutual consent. All other temporary action or activities in
the Court hall are immaterial and alien for consideration. I
am satisfied that the learned Subordinate Judge has committed
an error in dismissing the joint memo for dissolution of
marriage for the reasons expressed by it. The incredients of
Section 13 B of the Act having been made out and satisfied the
Court has no other option except to accept the prayer for
dissolution of marriage by a decree of divorce. Accordingly,
the C.R.P.is allowed. The judgment and decree of the
Subordinate Court, Poonamallee in H.M.O.P.No. 58 of 2001 is
set aside and a decree for divorce dissolving the marriage of
the petitioners is granted. No order as to costs.
1-3-2002
index:yes
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Sd/-
Assistant Registrar
/ True Copy /
Sub. Assistant Registrar
To
The Subordinate Judge
Poonamallee
Two C.Cs to Mr. R. Yashood Vardan, Advocate on payment of
Charges [S.R.Nos.13060 & 13138/2002]
C.R.P.NO.232 OF 2002
1-3-2002
svl