JUDGMENT
Samir Kumar Mookherjee, J.
1. The short question, which has been urged before us, on behalf of the contesting parties to a proceeding for divorce, is whether in connection with an appeal, arising out of a matrimonial suit, instituted by the husband on the grounds of cruelty and desertion, which stood dismissed, an application for divorce by mutual consent is maintainable before the appellate Court.
2. On behalf of the appellant it has been emphatically contended that since the parties have admittedly been residing separately for a period of more than one year and since there has been a mutual agreement that the marriage should be dissolved, the Appellate Court is under an obligation to grant dissolution on such application, on fulfilment of the conditions laid down in Sub-section (2) of Section 13B of the Hindu Marriage Act. It is to be noted that the application before this Court is a joint application and has been preferred by both the husband and the wife.
3. Judgment of the Trial Court under appeal before this Court reveals, (a) that a previous matrimonial suit, instituted by the husband, being matrimonial Suit No. 25 of 1978, stood dismissed on contest on 14.11.81, (b) since 4th of March, 1976 to 31st of August, 1976 only, the couple resided together and thereafter desertion commenced, (c) the attempted resolution in 1985 proved abortive though the suit stood dismissed as above, (d) Title Suit No. 39 of 1983 ended in a decree for maintenance in favour of the wife on 17.9.1984.
4. In the instant application for divorce by mutual consent, the wife has proposed to abandon all claims on account of consolidated permanent monthly alimony and to the properties vacated at the time of marriage in lieu of a payment of Rs. 30,000/- by the husband to the wife.
5. There cannot be any controversy that for allowing a petition under Section 13B of the Hindu Marriage Act, the statutory conditions of the Section have to be fulfilled. One of such conditions is that the parties must not be living together for a period of one year or more, which can be said to have been fulfilled in this case, at least prima facie. The second condition that they must have mutually consented to the dissolution of marriage cannot be said to have been fulfilled unless the Court has a further conviction that such consent has not been obtained by fraud or undue influence and that, there is no collusion between the parties within the meaning of Section 23(bb) and (c). The application must contain averments to the above effect and the Court by Section 13B(2) has been vested with power and jurisdiction to hold an enquiry as it may think fit for the purpose, before passing a decree for divorce by mutual consent. Notwithstanding fulfilment of the above statutory conditions and requirements, the time limit fixed by Sub-section (2) of Section 13B have to be fulfilled. We cannot accept the submission of Mr. Mullick to the effect that fulfilment of time limit is not mandatory but merely directory as in our view the legislative intent of preserving the sanctity and permanence of a Hindu Marriage finds an expression in fixation of the time limits for providing an opportunity to the parties to reconcile and withdraw the petition.
6. In the instant case the relevant application lacks averments as regards absence of collusion, fraud or undue influence but the terms and conditions agreed upon seem to suggest that consent might have been procured or might have come into existence on extraneous considerations. The requirement as to limit of time has not also been fulfilled. We, accordingly, are not inclined to entertain the petition and allow a divorce on the basis thereof by mutual consent.
7. In the circumstances, the power or authority of an Appellate Court to entertain an application for divorce on mutual consent does not require to be adjudicated in the present case.
8. In the result the application for divorce by mutual consent, filed on 24th January, 1994, fails and is dismissed. There will be no order as to costs.
Let the appeal be placed for further hearing next week.
Mr. Bhattacharyya, J.
9. I agree.