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Laxmibai Ward vs Shri Pramod on 17 March, 2009

Bombay High Court
Laxmibai Ward vs Shri Pramod on 17 March, 2009
Bench: B. P. Dharmadhikari
                                       1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                       NAGPUR BENCH, NAGPUR.




                                                    
                      SECOND APPEAL NO. 40 OF 2009




                                                   
    Sau. Sushama w/o Pramod Taksande,
    Aged 30 years, Household,
    r/o. C/o. Shri Wasudeo Shendre, Rani




                                      
    Laxmibai Ward, Pandharkawada,
    Tahsil Kelapur, District - Yavatmal.
                         ig                   ...             APPELLANT.


                                  VERSUS
                       
    Shri Pramod s/o Ramaji Taksande,
    Age 42 years, occupation - Businessman,
      

    Karanji Road, Tahsil Kelapur,
    District - Yavatmal.                      ...             RESPONDENT.
   



                              ----------------------
              Mr. R.D. Bhuibar, Advocate for Appellant.





              Mr. Anjan De, Advocate for Respondent.
                              -----------------------



                           CORAM : B.P. DHARMADHIKARI, J.
    Date of Reserving Order.       -          04.02.2009
    Date of Pronouncement.         -          17.03.2009




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    ORAL JUDGMENT.




                                                   

1. The appellant before this Court is wife and she challenges

judgment dated 6.12.2008 delivered by the District Judge -I,

Pandharkawada, affirming the judgment dated 6.10.2008 passed by the

Civil Judge, Senior Division, Pandharkawada (Kelapur). The Civil

Judge, has in H.M.P. No.24/2008 presented under section 13[B] of

Hindu Marriage Petition, dissolved marriage between the parties

because of consent and the custody of two sons with father Pramod was

continued as wife agreed not to seek the custody. It is also recorded

that wife waived her right of maintenance. This order was challenged

by wife in Regular Civil Appeal No. 68/2008 inter-alia contending that

her signature on said petition and accompanying affidavits were

obtained under false pretext and she was compelled to place her

signature upon it. She contended that both the parties were residing

together and there was no separation for a period of one year which is a

mandatory requirement. The Lower Appellate Court has considered this

ground and in paragraph no.7 found that petition was presented on

4.4.2008, parties were directed to remain present on 6.10.2008 and

from pleadings it appeared that both parties were not ready to continue

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their marital tie. In their affidavits, both state that they were residing

separately from February, 2007 and hence both were residing away

from each other for more than one year before the presentation of the

Section 13[B] petition. The Appellate Court also found that the

affidavit of wife demonstrated that they were residing separately from

one year before filing of the petition. It also noted that Advocate for

husband submitted that, wife was residing at house of her brother at

Karanji itself and this submission was not “refuted” by appellant i.e.

wife. In view of this consideration the appeal came to be dismissed.

2. I have heard Advocate Shri Bhuibar, for appellant – Wife and

Advocate Shri Anjan De, for respondent – husband in this background.

3. On 04.02.2009 following three questions were framed and

after hearing the parties, the appeal was closed for orders/ judgment.

“(1) Whether in present facts and circumstances, there
is compliance with provision of Section 23[1][bb] of
the Hindu Marriage Act ?

              (2)        Whether the petitioner - Wife could have
                         challenged the judgment and order in
                         H.M.P.No.24/2008 in Appeal ?

              (3)        Whether the petitioner-Wife has indulged in
                         perjury?"




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Then it was felt that an attempt for re-conciliation should have been

made even in High Court, accordingly, in consultation with both the

Advocates sought time for the said purpose till 02.03.2009 and

ultimately both of them expressed their inability and stated that efforts

undertaken for re-conciliation failed. The matter was therefore again

heard on 02.03.2009 and on that date Advocate Shri De for respondent

invited attention to the provisions of Order 41 Rule 25 of C.P.C. to urge

that if this Court finds it necessary, a limited issue or question can be

framed and finding upon it can be called from the Trial Court. The

appeal was finally closed for judgment on 02.03.2009.

4. Advocate Shri Bhuibar, has contended that the requirement

of law in this respect is very clear and the Civil Judge, Senior Division

has to record a satisfaction under Section 23[1][bb] so as to avoid such

contentions and arguments from being raised. He invites attention to

the fact that address of both the parties mentioned in the marriage

petition is same and their affidavits also mention very same address.

There is nothing on record to show that they were residing away from

each other and the petition itself did not demonstrates that parties were

staying separately for more than one year. He relies upon two

judgments of Hon’ble Apex Court reported at AIR 1998 SC 764–

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Balwinder Kaur .vrs. Hardeep Singh , Sureshta Devi .vrs. Om Prakash–

1991 (1) Mh.L.J. 324, to urge that the Lower Courts have failed to

exercise jurisdiction in accordance with the law. AIR 1987 Punjab 191

Smt. Krishna Khetarpal .vrs. Satish Lal, is being pointed out to show

that the present appeal is maintainable. Lastly it is argued that in view

of the document filed along with the reply by the present

respondent/husband need for counseling couple was apparent and Civil

Judge, Senior Division has not held any conciliation proceeding in the

matter. The learned counsel therefore, prayed for allowing the Second

Appeal.

5. Advocate Shri Anjan De, for respondent – husband has

placed strong reliance upon the documents filed by the respondent on

affidavit along with Civil Application No. 130/2009. The said

application is also styled as “submissions”. It is for taking action for

perjury and for contempt of Court against the appellant. It is pleaded

that the documents accompanying it are obtained under Right to

Information Act. The first document is report submitted by the S.D.P.O.

Pandharkawada on 20.08.2008 to Assistant Superintendent of Police, at

Yavatmal after enquiry into the complaint made by Digamber Ramdas

Dhote. He is father of present appellant. The second document is the

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oral statement recorded by S.D.P.O. The fourth document is statement

dated 18.8.2008 of present appellant and in that statement she has that

she is married with the present respondent and has two sons from him.

She has further stated that she has love affair with police constable

Surendra Wasnik, since last one year and she has gone out with him and

when ever he used to visit her, he used to present her with Saree or

some ornaments out of love. This relationship was not liked by her

parents and some others and hence complaint came to be filed against

Shri Wasnik, She mentioned that she had applied for divorce before the

Court and case would be decided within a month. After grant of

divorce from court she was going to reside with Shri Wasnik because of

their relations. Her father in law and mother in law had agreed to look

after her sons and hence custody of sons would be with them. She has

further stated that before moving for divorce she had a talk with Shri

Wasnik on mobile phone of her husband and as Shri Wasnik promised

that they would reside jointly, she had informed accordingly to her

husband who was standing by her side. She further stated that she had

tried to contact Surendra Wasnik on mobile in last 2/3 months, but

contact could not be established. Document no.5, is statement of her

husband [present respondent], which shows that he has corroborated

the above position. He has further stated that his wife is deeply in love

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with Shri Wasnik and they also tried to commit suicide by pouring

kerosene and because of this ultimately proceedings for divorce were

required to be initiated. Annexure-R2 with this reply is copy of

application dated 4.4.2008 filed in the court of Civil Judge, Senior

Division, Pandharkawada where both the parties to this appeal pointed

out that as the applicant no.2 wife therein wanted to marry Surendra

Wasnik, waiting period of 6 months should be relaxed. Annexure- R3 is

the affidavit dated 6.10.2008 filed by the present appellant before the

said Court in which she has mentioned that they have not been residing

together as such from February 2007 and as there was no possibility of

reconciliation on 4.4.2008, proceedings for divorce by mutual consent

came to be filed. She has further stated that she is not going to claim

any maintenance from her husband and also waived her right to

custody of children. She has further stated that she was not carrying

from her husband and as re-conciliation was not possible, though

relatives tried to mediate and resolve, she was voluntarily severing the

relationship. She has further stated that she is firm on her decision

taken 6 months earlier.

6. In view of this document Advocate Shri De, contends that

even after filing of the proceedings for grant of divorce on 4.4.2008 the

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desire and decision of present appellant to separate from the respondent

has come on record and he points out that all these statements are

recorded also 4 months thereafter. He states that therefore plea of any

mis representation or coercion or pressure is clearly by way of after

thought and false affidavit has been filed before this Court. According

to him it is nothing but perjury and as it interferes with the

administration of justice it also constitutes contempt of Court. He has

invited attention to statement of Surendra Wasnik recorded on

19.8.2008 by the S.D.P.O in which Surendra Wasnik has stated that he

was not knowing the present appellant and he had even never talked

with her. He has further stated that because there was some quarrel or

misunderstanding between the said lady and her husband, she filed

proceedings in the court of law and as she needed some shelter, she was

trying to get into his house. He further stated that he is already married

and his wife was working in health department as staff nurse and his

son aged about 7 years is taking education in school at Yavatmal. He

further mentions that because of service of his wife, his wife and

children were residing at Yavatmal only. The S.D.P.O has in brief

narrated all these statements and in his report, stated that police

constable Surendra Wasnik had conducted himself in a manner not

becoming of his status and therefore he deserves tobe punished. It is

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the contention of Advocate Shri De, that because of change in his

statement by Shri Wasnik, as it became clear to appellant that he is not

going to marry or reside with her, she might have changed her stand.

According to him in present circumstances, there is substantial

compliance with provisions of Section 23[1][bb] and entire case law

cited above is not relevant. He points out that from orders passed on

9.4.2008 it is apparent that the Presiding Officer has heard both of them

and then after perusal of the contents of petition adjourned it to

6.10.2008. He therefeore, states that efforts to conciliate were also

made on that date and hence no substantial question of law arise in this

Second Appeal and the same deserves to be dismissed.

7. The contention of Advocate Shri De, in Civil Application

No.130/2009, is to initiate action against the appellant / wife and to

punish her for perjury. The said application is also to be treated as

submissions of respondent / husband. The documents prepared by

Deputy Divisional Police Officer and report submitted by him to the

Superintendent of Police, Yavatmal are relied upon to show that, there

was no pressure of any type upon the appellant / wife and her

contention that her signature on petition for grant of divorce by mutual

consent or that on affidavits were obtained by force, are false. It is also

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alleged that by making false allegations before this Court, she obtained

interim order on 30.01.2009. I find it premature to rely on the said

documents at this stage and to return any finding on perjury on this

basis. The interim order was passed by this Court on 30.01.2009 after

hearing both the sides. The report prepared by police or statements

recorded by police are still not put to the appellant, as required by law

and hence at this stage it cannot be used against her. Perusal of the

statements recorded by police and report prepared on its basis, reveal

that the appellant / wife wanted to have relations with police Constable

Shri Wasnik and wanted to cohabit with him. The statement also

discloses that she had made telephone calls accordingly to the said

constable by using mobile instrument of her husband and in presence of

her husband. The police constable Shri Wasnik assured to cohabit with

her and then only she filed the application for divorce along with her

husband. But unless and until all these facts are proved on record, no

reliance can be placed upon the same at this stage. The prayer to

punish the appellant for perjury is therefore premature. Recourse to

Order 41 Rule 25, only for this purpose in present matter is not

warranted.

8. The provisions of Section 13[B] of Hindu Marriage Act

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require the parties to live separately for a period of one year before

petition for grant of divorce is presented. Perusal of application as

moved by the parties jointly on 4.4.2008 reveals that it does not disclose

this fact & does not contain any statement in this respect. On 4.4.2008

the petition was presented and the in charge Court directed it to be

placed before the regular Presiding Officer. Both the parties were

present before the regular court on 09.04.2008. The said court i.e. Trial

Court has recorded that it perused the contents of the petition and

heard both of them in person. Thereafter it adjourned the matter to

06.10.2008 for further orders. The order therefore clearly shows that

the fact whether parties were residing together or were residing

separately has not been specifically gone into by the said Court on

09.04.2008. The petition as filed prima facie shows that both of them

were residing at same place. Advocate Shri De, has contended that the

appellant was residing with her brother in same village. However, the

position is to be verified by the Trial Court on very first date, and this

exercise ought to have been undertaken on 09.04.2008 itself. Advocate

Shri De, has pointed out that on 4.4.2008 the parties had moved

application for waiving the requirement of waiting for 6 months and in

it, it has been mentioned that wife had to remarry immediately with

Shri Wasnik, Police Constable. This application is supported by separate

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affidavits of both. Dates given by the Trial Court show that no such

exemption was granted by it. However, orders if any, passed upon it

have not been brought on record. On 6.10.2008 again wife has filed

affidavit and in the said affidavit, she has mentioned that there was

difference of opinion between the two since beginning and they were

residing separately from February 2007. She has stated that she was

reiterating her decision to obtain divorce by mutual consent. It is to be

noted that the grievance of the appellant is that her signatures were

obtained against her wish by her husband.

9. The judgment of Hon’ble Apex Court in the case of Sureshta

Devi .vrs. Om Prakash (1991 Mh.L.J. 324), the Hon’ble Apex Court has

held that, it is open to the parties to even unilaterally withdraw

through consent at any time. In paragraph No. 9 the Hon’ble Apex

Court has noted that parties have to make joint motion not earlier than

6 months after the date of presentation of petition and such much

enables the Trial Court to find out the genuineness of the averments in

the petition and also to find out whether the consent was not obtained

by force, fraud or undue influence. The Trial Court can make such

enquiry as it thinks fit, including examining parties for that purpose and

if it is satisfied that consent of the parties were not obtained by force,

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fraud or undue influence and that they mutually agreed for dissolution

of marriage, the Trial Court must pass a decree of divorce.

In Balwinder Kaur .vrs. Hardeep Singh (supra) in paragraph

No.15, the Hon’ble Apex Court has held that Section 23 of Hindu

Marriage Act mandates that Court before granting decree of divorce has

to satisfy itself that grounds for claiming relief exists and petitioner is

not taking advantage of his own wrong or disability. Court has to make

an effort to bring about re-conciliation between the parties. I find that

the provisions of Section 23[1][bb] require the Court to satisfy itself

that consent for divorce under section 13[B] has not been obtained by

force, fraud or undue influence. This application of mind has to be on

very first date when the court adjourns the matter for conciliation or for

statutory period and must reveal itself in the court order then passed.

The said order must also disclose that the court had satisfied itself that

the matter fulfilled all requirements of law relevant at that stage. The

earlier order & impugned judgment delivered by the Trial Court or by

the Lower Appellate Court does not show that any such satisfaction was

reached or recorded by the Trial Court. The final order passed on

16.02.2008 by the Civil Judge, Senior Division, reveals that even the

date from which the parties were staying separately has not been

mentioned any where in it, and the compliance with Section 23[1][bb]

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is also not recorded. It only mentions in paragraph no.4 that dispute

between the parties could not be settled by their relatives. In paragraph

No.5 it has been mentioned that the petition was jointly presented on

04.04.2008 and statutory period of 6 months was given to parties to

find out genesis of settlement between them and thee was no fruitful

settlement. Thus there was no endeavor by the Court below to find out

whether any conciliation was possible or not. The said judgment of trial

Court was then questioned by wife by filing Appeal under Section 28 of

the Hindu Marriage Act in the Court of District Judge at

Pandharkawada. In appeal memo in paragraph no.13 it has been

specifically averred that there was no separation and the averment in

the application before the trial Court were false. It is also pleaded that

false affidavit was prepared and wife was compelled by the husband to

put her signature on it. These contentions are not considered by the

Lower Appellate Court. It appears that the Advocate who was jointly

representing the husband and wife before the Trial Court appeared on

behalf of respondent to oppose the appeal of wife. The lower Appellate

Court should not have permitted such appearance, particularly in view

of the ground of compulsion or force by the wife. Appellate Court has

found that in affidavit dated 6.10.2008 both the parties mentioned that

they were residing separately from February 2007 and hence condition

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precedent required under section 13[B] was satisfied. The contentions

of appellant / wife that her signature was obtained by pressurizing her

or then the averment in their affidavit were false, are ignored and the

fact that statutory requirement of recording satisfaction in this respect

cast upon the Trial Court by section 23 is not fulfilled, is also ignored.

Thus the appeal came to be dismissed only by accepting the disputed

affidavit as sufficient compliance.

10.

Both the judgments are therefore delivered mechanically

without any application of mind to the provisions of Law in the matter.

The obligation cast upon court by legislature while dissolving marriage

by consent is overlooked and its object has been defeated in this case.

The institution of marriage is sacred and marriage tie is not to be easily

broken. The requirement to verify the voluntary nature of consent,

provision of a period of separation, duty to attempt to conciliate and

waiting period of 6 months in court all show the seriousness with which

the parties as also the courts of law have to evaluate the facts. Here,

both the courts have acted mechanically thereby defeating the statutory

protection extended to week spouse by law. The judgments are

therefore unsustainable.

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11. Advocate Shri De, however has also raised contention that as

divorce has been obtained by mutual consent, the decree is consent

decree and hence appeal is not maintainable. In Smt. Krishna

Khetarpal .vrs. Satish Lal (supra), the Hon’ble Division Bench of that

High Court has considered the identical challenge in paragraph nos. 3 to

6 and concluded that appeal against such decree is maintainable. It has

been held that Section 28[1] of Hindu Marriage Act provides a right of

appeal and all original decrees made by the Trial Court under the said

Act are appealable. The decree of divorce by mutual consent is one

such decree & hence, also appealable. It has been observed that appeal

under section 96 of C.P.C. is on different footing and Section 96[3]

prescribing a bar of appeal against consent decree has no application. In

paragraph no.5, it is observed that a decree for divorce by mutual

consent is not based merely on mutuality of the consenting parties, but

the courts involvement in the decision making is inextricably a part of

such decree. Possibility of an error, legal or factual, in such decision

cannot be ruled out, and therefore, appeal under section 28 has been

provided for. Another Division Bench of that High Court in the case of

Charanjit Singh Mann .vrs. Neelam Maan (AIR 2006 P & H 201), has in

paragraph no.25, cited this judgment with approval. AIR 2007

Jharkhand 34 –Smt. Hina Singh .vrs. Satya Kumar Singh, is again the

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judgment of Division Bench of Hon’ble Jharkhand High Court wherein

provisions of Order 23 Rule 3 of C.P.C. are considered and ultimately in

paragraph no.3 it has been held that appeal against decree of divorce by

mutual consent is maintainable. In view of these judgments which

correctly & clearly clinch the issue, I find that appeal against such

consent decree is maintainable.

12. Legislature has cast obligations upon Court entertaining the

proceedings under section 13[B] to record a finding that consent for

divorce has not been obtained by force, fraud or undue influence. Thus

legislature has visualised that there may be a case in which consent for

divorce may be obtained and decided to provide a safeguard against

abuse of this provision. Hence obligation has been cast upon the court

to verify the same, and to record a satisfaction that the consent given by

the parties is free and voluntary. Thus having visualized abuse of such

provision for grant of divorce by mutual consent by use of force, fraud

etc., it cannot be accepted that legislature did not provide for a remedy

to the spouse aggrieved in such matters. To hold that remedy of appeal

is not available to such aggrieved spouse, will be rendering nugatory the

exercise of obligation cast upon the trial court by the Legislature. I

therefore find that the arguments of Advocate Shri De about tenability

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of appeal against such consent divorce decree are liable to be rejected.

13. In view of this consideration, it has to be held that the appeal

as filed by the appellant / wife before the Lower Appellate Court and

before this Court is legally maintainable and question no.2 needs to be

answered accordingly in affirmative in her favour.

Question no.3 about indulgence in perjury by the appellant

wife cannot be answered at this stage in absence of sufficient material,

as it is found to be premature. No remand or calling of report from trial

court in that respect is necessary as even otherwise the trial court has to

look again into the voluntary nature of wife’s consent.

Question no.1 is answered in favour of the wife by holding

that there is no compliance with provisions of Section 23[1][bb] of the

Hindu Marriage Act.

14. In the circumstances, the judgment and decree dated

06.10.2008 delivered by the Civil Judge, Senior Division,

Pandharkawada (Kelapur) in H.M.P. No. 24/2008 is hereby quashed

and set aside. Similarly, the judgment and decree dated 06.12.2008

delivered by the District Judge-I, Pandharkawada in Regular Civil

Appeal No. 68/2008 is also quashed and set aside. H.M.P. No.24/2008

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is restored back to the file of Civil Judge, Senior Division,

Pandharkawada for its further trial in accordance with law. Second

Appeal is accordingly allowed. However, in the circumstances of the

case there shall be no order as to cost.

JUDGE

Rgd.

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