{"id":178532,"date":"2009-03-17T00:00:00","date_gmt":"2009-03-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/laxmibai-ward-vs-shri-pramod-on-17-march-2009"},"modified":"2018-12-03T12:51:57","modified_gmt":"2018-12-03T07:21:57","slug":"laxmibai-ward-vs-shri-pramod-on-17-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/laxmibai-ward-vs-shri-pramod-on-17-march-2009","title":{"rendered":"Laxmibai Ward vs Shri Pramod on 17 March, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Laxmibai Ward vs Shri Pramod on 17 March, 2009<\/div>\n
Bench: B. P. Dharmadhikari<\/div>\n
                                       1\n\n\n\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                            \n                       NAGPUR BENCH, NAGPUR.\n\n\n\n\n                                                    \n                      SECOND APPEAL NO. 40 OF 2009\n\n\n\n\n                                                   \n    Sau. Sushama w\/o Pramod Taksande,\n    Aged 30 years, Household,\n    r\/o. C\/o. Shri Wasudeo Shendre, Rani\n\n\n\n\n                                      \n    Laxmibai Ward, Pandharkawada,\n    Tahsil Kelapur, District - Yavatmal.\n                         ig                   ...             APPELLANT.\n\n\n                                  VERSUS\n                       \n    Shri Pramod s\/o Ramaji Taksande,\n    Age 42 years, occupation - Businessman,\n      \n\n    Karanji Road, Tahsil Kelapur,\n    District - Yavatmal.                      ...             RESPONDENT.\n   \n\n\n\n                              ----------------------\n              Mr. R.D. Bhuibar, Advocate for Appellant.\n\n\n\n\n\n              Mr. Anjan De, Advocate for Respondent.\n                              -----------------------\n\n\n\n                           CORAM : B.P. DHARMADHIKARI, J.\n<\/pre>\n
    Date of Reserving Order.       -          04.02.2009\n    Date of Pronouncement.         -          17.03.2009\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:25:38 :::<\/span>\n                                        2<\/span>\n\n\n\n\n                                                                           \n    ORAL JUDGMENT.\n\n\n\n\n                                                   \n<\/pre>\n
    1.        The appellant before this Court is wife and she challenges<\/p>\n
    judgment dated 6.12.2008 delivered by the District Judge -I,<\/p>\n
    Pandharkawada, affirming the judgment dated 6.10.2008 passed by the<\/p>\n
    Civil Judge, Senior Division, Pandharkawada (Kelapur).              The Civil<\/p>\n
    Judge, has in H.M.P. No.24\/2008 presented under section 13[B] of<\/p>\n
    Hindu Marriage Petition,     dissolved marriage between the parties<\/p>\n
    because of consent and the custody of two sons with father Pramod was<\/p>\n
    continued as wife agreed not to seek the custody. It is also recorded<\/p>\n
    that wife waived her right of maintenance. This order was challenged<\/p>\n
    by wife in Regular Civil Appeal No. 68\/2008 inter-alia contending that<\/p>\n
    her signature on said petition and accompanying affidavits were<\/p>\n
    obtained under false pretext and she was compelled to place her<\/p>\n
    signature upon it. She contended that both the parties were residing<\/p>\n
    together and there was no separation for a period of one year which is a<\/p>\n
    mandatory requirement. The Lower Appellate Court has considered this<\/p>\n
    ground and in paragraph no.7 found that petition was presented on<\/p>\n
    4.4.2008, parties were directed to remain present on 6.10.2008 and<\/p>\n
    from pleadings it appeared that both parties were not ready to continue<\/p>\n
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\n                                         3<\/span><\/p>\n
    their marital tie. In their affidavits, both state that they were residing<\/p>\n
    separately from February, 2007 and hence both were residing away<\/p>\n
    from each other for more than one year before the presentation of the<\/p>\n
    Section 13[B] petition.     The Appellate Court also found that the<\/p>\n
    affidavit of wife demonstrated that they were residing separately from<\/p>\n
    one year before filing of the petition. It also noted that Advocate for<\/p>\n
    husband submitted that, wife was residing at house of her brother at<\/p>\n
    Karanji itself and this submission was not “refuted” by appellant i.e.<\/p>\n
    wife. In view of this consideration the appeal came to be dismissed.\n<\/p>\n
    2.         I have heard Advocate Shri Bhuibar, for appellant – Wife and<\/p>\n
    Advocate Shri Anjan De, for respondent – husband in this background.\n<\/p>\n
    3.         On 04.02.2009 following three questions were framed and<\/p>\n
    after hearing the parties, the appeal was closed for orders\/ judgment.\n<\/p>\n
              “(1)       Whether in present facts and circumstances, there
\n                         is compliance with provision of Section 23[1][bb] of
\n                         the Hindu Marriage Act ?\n<\/p><\/blockquote>\n
              (2)        Whether the petitioner - Wife could have\n                         challenged the judgment and order in\n                         H.M.P.No.24\/2008 in Appeal ?\n\n              (3)        Whether the petitioner-Wife has indulged in\n                         perjury?\"\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:25:38 :::<\/span>\n                                        4<\/span>\n\n\n<\/pre>\n
    Then it was felt that an attempt for re-conciliation should have been<\/p>\n
    made even in High Court, accordingly, in consultation with both the<\/p>\n
    Advocates    sought time for the said purpose till 02.03.2009 and<\/p>\n
    ultimately both of them expressed their inability and stated that efforts<\/p>\n
    undertaken for re-conciliation failed. The matter was therefore          again<\/p>\n
    heard on 02.03.2009 and on that date Advocate Shri De for respondent<\/p>\n
    invited attention to the provisions of Order 41 Rule 25 of C.P.C. to urge<\/p>\n
    that if this Court finds it necessary, a limited issue or question can be<\/p>\n
    framed and finding upon it can be called from the Trial Court. The<\/p>\n
    appeal was finally closed for judgment on 02.03.2009.\n<\/p><\/blockquote>\n
    4.          Advocate Shri Bhuibar, has contended that the requirement<\/p>\n
    of law in this respect is very clear and the Civil Judge, Senior Division<\/p>\n
    has to record a satisfaction under Section 23[1][bb] so as to avoid such<\/p>\n
    contentions and arguments from being raised. He invites attention to<\/p>\n
    the fact that address of both the parties mentioned in the marriage<\/p>\n
    petition is same and their affidavits also mention very same address.\n<\/p>\n
    There is nothing on record to show that they were residing away from<\/p>\n
    each other and the petition itself did not demonstrates that parties were<\/p>\n
    staying separately for more than one year.         He relies upon two<\/p>\n
    judgments of Hon’ble Apex Court reported at AIR 1998 SC 764–\n<\/p>\n
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\n                                        5<\/span><\/p>\n
    Balwinder Kaur .vrs. Hardeep Singh , Sureshta Devi .vrs. Om Prakash–\n<\/p>\n
    1991 (1) Mh.L.J. 324, to urge that the Lower Courts have failed to<\/p>\n
    exercise jurisdiction in accordance with the law. AIR 1987 Punjab 191<\/p>\n
    Smt. Krishna Khetarpal .vrs. Satish Lal, is being pointed out to show<\/p>\n
    that the present appeal is maintainable. Lastly it is argued that in view<\/p>\n
    of the document filed along with the reply by the present<\/p>\n
    respondent\/husband need for counseling couple was apparent and Civil<\/p>\n
    Judge, Senior Division has not held any conciliation proceeding in the<\/p>\n
    matter. The learned counsel therefore, prayed for allowing the Second<\/p>\n
    Appeal.\n<\/p>\n
    5.         Advocate Shri Anjan De, for respondent – husband has<\/p>\n
    placed strong reliance upon the documents filed by the respondent on<\/p>\n
    affidavit along with Civil Application No. 130\/2009. The said<\/p>\n
    application is also styled as “submissions”. It is for taking action for<\/p>\n
    perjury and for contempt of Court against the appellant. It is pleaded<\/p>\n
    that the documents accompanying it are obtained under Right to<\/p>\n
    Information Act. The first document is report submitted by the S.D.P.O.\n<\/p>\n
    Pandharkawada on 20.08.2008 to Assistant Superintendent of Police, at<\/p>\n
    Yavatmal after enquiry into the complaint made by Digamber Ramdas<\/p>\n
    Dhote. He is father of present appellant. The second document is the<\/p>\n
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\n                                        6<\/span><\/p>\n
    oral statement recorded by S.D.P.O. The fourth document is statement<\/p>\n
    dated 18.8.2008 of present appellant and in that statement she has that<\/p>\n
    she is married with the present respondent and has two sons from him.\n<\/p>\n
    She has further stated that she has love affair with police constable<\/p>\n
    Surendra Wasnik, since last one year and she has gone out with him and<\/p>\n
    when ever he used to visit her, he used to present her with Saree or<\/p>\n
    some ornaments out of love. This relationship was not liked by her<\/p>\n
    parents and some others and hence complaint came to be filed against<\/p>\n
    Shri Wasnik, She mentioned that she had applied for divorce before the<\/p>\n
    Court and case would be decided        within a month.       After grant of<\/p>\n
    divorce from court she was going to reside with Shri Wasnik because of<\/p>\n
    their relations. Her father in law and mother in law had agreed to look<\/p>\n
    after her sons and hence custody of sons would be with them. She has<\/p>\n
    further stated that before moving for divorce she had a talk with Shri<\/p>\n
    Wasnik on mobile phone of her husband and as Shri Wasnik promised<\/p>\n
    that they would reside jointly, she had informed accordingly to her<\/p>\n
    husband who was standing by her side. She further stated that she had<\/p>\n
    tried to contact Surendra Wasnik on mobile in last 2\/3 months, but<\/p>\n
    contact could not be established. Document no.5, is statement of her<\/p>\n
    husband [present respondent], which shows that he has corroborated<\/p>\n
    the above position. He has further stated that his wife is deeply in love<\/p>\n
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\n                                        7<\/span><\/p>\n
    with Shri Wasnik and they also tried to commit suicide by pouring<\/p>\n
    kerosene and because of this ultimately proceedings for divorce were<\/p>\n
    required to be initiated.    Annexure-R2 with this reply is copy of<\/p>\n
    application dated 4.4.2008 filed in the court of Civil Judge, Senior<\/p>\n
    Division, Pandharkawada where both the parties to this appeal pointed<\/p>\n
    out that as the applicant no.2 wife therein wanted to marry Surendra<\/p>\n
    Wasnik, waiting period of 6 months should be relaxed. Annexure- R3 is<\/p>\n
    the affidavit dated 6.10.2008 filed by the present appellant before the<\/p>\n
    said Court in which she has mentioned that they have not been residing<\/p>\n
    together as such from February 2007 and as there was no possibility of<\/p>\n
    reconciliation on 4.4.2008, proceedings for divorce by mutual consent<\/p>\n
    came to be filed. She has further stated that she is not going to claim<\/p>\n
    any maintenance from her husband and          also waived her right to<\/p>\n
    custody of children. She has further stated that she was not carrying<\/p>\n
    from her husband and as re-conciliation was not possible, though<\/p>\n
    relatives tried to mediate and resolve, she was voluntarily severing the<\/p>\n
    relationship. She has further stated that she is firm on her decision<\/p>\n
    taken 6 months earlier.\n<\/p>\n
    6.         In view of this document Advocate Shri De, contends that<\/p>\n
    even after filing of the proceedings for grant of divorce on 4.4.2008 the<\/p>\n
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\n                                         8<\/span><\/p>\n
    desire and decision of present appellant to separate from the respondent<\/p>\n
    has come on record and he points out that all these statements are<\/p>\n
    recorded also 4 months thereafter. He states that therefore plea of any<\/p>\n
    mis representation or coercion or pressure is clearly by way of after<\/p>\n
    thought and false affidavit has been filed before this Court. According<\/p>\n
    to him it is nothing but perjury and as it interferes with the<\/p>\n
    administration of justice it also constitutes contempt of Court. He has<\/p>\n
    invited attention to statement of Surendra Wasnik recorded on<\/p>\n
    19.8.2008 by the S.D.P.O in which Surendra Wasnik has stated that he<\/p>\n
    was not knowing the present appellant and he had even never talked<\/p>\n
    with her. He has further stated that because there was some quarrel or<\/p>\n
    misunderstanding between the said lady and her husband, she filed<\/p>\n
    proceedings in the court of law and as she needed some shelter, she was<\/p>\n
    trying to get into his house. He further stated that he is already married<\/p>\n
    and his wife was working in health department as staff nurse and his<\/p>\n
    son aged about 7 years is taking education in school at Yavatmal. He<\/p>\n
    further mentions that because of service of his wife, his wife and<\/p>\n
    children were residing at Yavatmal only.      The S.D.P.O has in brief<\/p>\n
    narrated all these statements and in his report, stated that police<\/p>\n
    constable Surendra Wasnik had conducted himself in a manner not<\/p>\n
    becoming of his status and therefore he deserves tobe punished. It is<\/p>\n
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\n                                         9<\/span><\/p>\n
    the contention of Advocate Shri De, that because of change in his<\/p>\n
    statement by Shri Wasnik, as it became clear to appellant that he is not<\/p>\n
    going to marry or reside with her, she might have changed her stand.\n<\/p>\n
    According to him in present circumstances, there is substantial<\/p>\n
    compliance with provisions of Section 23[1][bb] and entire case law<\/p>\n
    cited above is not relevant. He points out that from orders passed on<\/p>\n
    9.4.2008 it is apparent that the Presiding Officer has heard both of them<\/p>\n
    and then after perusal of the contents of petition adjourned it to<\/p>\n
    6.10.2008.    He therefeore, states that efforts to conciliate were also<\/p>\n
    made on that date and hence no substantial question of law arise in this<\/p>\n
    Second Appeal and the same deserves to be dismissed.\n<\/p>\n
    7.           The contention of Advocate Shri De, in Civil Application<\/p>\n
    No.130\/2009, is to initiate action against the appellant \/ wife and to<\/p>\n
    punish her for perjury. The said application is also to be treated as<\/p>\n
    submissions of respondent \/ husband.        The documents prepared by<\/p>\n
    Deputy Divisional Police Officer and report submitted by him to the<\/p>\n
    Superintendent of Police, Yavatmal are relied upon to show that, there<\/p>\n
    was no pressure of any type upon the appellant \/ wife and her<\/p>\n
    contention that her signature on petition for grant of divorce by mutual<\/p>\n
    consent or that on affidavits were obtained by force, are false. It is also<\/p>\n
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\n                                        10<\/span><\/p>\n
    alleged that by making false allegations before this Court, she obtained<\/p>\n
    interim order on 30.01.2009. I find it premature to rely on the said<\/p>\n
    documents at this stage and to return any finding on perjury on this<\/p>\n
    basis. The interim order was passed by this Court on 30.01.2009 after<\/p>\n
    hearing both the sides. The report prepared by police or statements<\/p>\n
    recorded by police are still not put to the appellant, as required by law<\/p>\n
    and hence at this stage it cannot be used against her. Perusal of the<\/p>\n
    statements recorded by police and report prepared on its basis, reveal<\/p>\n
    that the appellant \/ wife wanted to have relations with police Constable<\/p>\n
    Shri Wasnik and wanted to cohabit with him.          The statement also<\/p>\n
    discloses that she had made telephone calls accordingly to the said<\/p>\n
    constable by using mobile instrument of her husband and in presence of<\/p>\n
    her husband. The police constable Shri Wasnik assured to cohabit with<\/p>\n
    her and then only she filed the application for divorce along with her<\/p>\n
    husband. But unless and until all these facts are proved on record, no<\/p>\n
    reliance can be placed upon the same at this stage.          The prayer to<\/p>\n
    punish the appellant for perjury is therefore premature. Recourse to<\/p>\n
    Order 41 Rule 25, only for this purpose in present matter is not<\/p>\n
    warranted.\n<\/p>\n
    8.           The provisions of Section 13[B] of Hindu Marriage Act<\/p>\n
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\n                                        11<\/span><\/p>\n
    require the parties to live separately for a period of one year before<\/p>\n
    petition for grant of divorce is presented. Perusal of application as<\/p>\n
    moved by the parties jointly on 4.4.2008 reveals that it does not disclose<\/p>\n
    this fact & does not contain any statement in this respect. On 4.4.2008<\/p>\n
    the petition was presented and the in charge Court directed it to be<\/p>\n
    placed before the regular Presiding Officer.      Both the parties were<\/p>\n
    present before the regular court on 09.04.2008. The said court i.e. Trial<\/p>\n
    Court has recorded that it perused the contents of the petition and<\/p>\n
    heard both of them in person. Thereafter it adjourned the matter to<\/p>\n
    06.10.2008 for further orders. The order therefore clearly shows that<\/p>\n
    the fact whether parties were residing together or were residing<\/p>\n
    separately has not been specifically gone into by the said Court on<\/p>\n
    09.04.2008. The petition as filed prima facie shows that both of them<\/p>\n
    were residing at same place. Advocate Shri De, has contended that the<\/p>\n
    appellant was residing with her brother in same village. However, the<\/p>\n
    position is to be verified by the Trial Court on very first date, and this<\/p>\n
    exercise ought to have been undertaken on 09.04.2008 itself. Advocate<\/p>\n
    Shri De, has pointed out that on 4.4.2008 the parties had moved<\/p>\n
    application for waiving the requirement of waiting for 6 months and in<\/p>\n
    it, it has been mentioned that wife had to remarry immediately with<\/p>\n
    Shri Wasnik, Police Constable. This application is supported by separate<\/p>\n
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\n                                        12<\/span><\/p>\n
    affidavits of both. Dates given by the Trial Court show that no such<\/p>\n
    exemption was granted by it. However, orders if any, passed upon it<\/p>\n
    have not been brought on record. On 6.10.2008 again wife has filed<\/p>\n
    affidavit and in the said affidavit, she has mentioned that there was<\/p>\n
    difference of opinion between the two since beginning and they were<\/p>\n
    residing separately from February 2007. She has stated that she was<\/p>\n
    reiterating her decision to obtain divorce by mutual consent. It is to be<\/p>\n
    noted that the grievance of the appellant is that her signatures were<\/p>\n
    obtained against her wish by her husband.\n<\/p>\n
    9.         The judgment of Hon’ble Apex Court in the case of Sureshta<\/p>\n
    Devi .vrs. Om Prakash (1991 Mh.L.J. 324), the Hon’ble Apex Court has<\/p>\n
    held that, it is open to the parties     to even unilaterally withdraw<\/p>\n
    through consent at any time. In paragraph No. 9 the Hon’ble Apex<\/p>\n
    Court has noted that parties have to make joint motion not earlier than<\/p>\n
    6 months after the date of presentation of petition and such much<\/p>\n
    enables the Trial Court to find out the genuineness of the averments in<\/p>\n
    the petition and also to find out whether the consent was not obtained<\/p>\n
    by force, fraud or undue influence. The Trial Court can make such<\/p>\n
    enquiry as it thinks fit, including examining parties for that purpose and<\/p>\n
    if it is satisfied that consent of the parties were not obtained by force,<\/p>\n
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\n                                         13<\/span><\/p>\n
    fraud or undue influence and that they mutually agreed for dissolution<\/p>\n
    of marriage, the Trial Court must pass a decree of divorce.\n<\/p>\n
               In Balwinder Kaur .vrs. Hardeep Singh (supra) in paragraph<\/p>\n
    No.15, the Hon’ble Apex Court has held that Section 23 of Hindu<\/p>\n
    Marriage Act mandates that Court before granting decree of divorce has<\/p>\n
    to satisfy itself that grounds for claiming relief exists and petitioner is<\/p>\n
    not taking advantage of his own wrong or disability. Court has to make<\/p>\n
    an effort to bring about re-conciliation between the parties. I find that<\/p>\n
    the provisions of Section 23[1][bb] require the Court to satisfy itself<\/p>\n
    that consent for divorce under section 13[B] has not been obtained by<\/p>\n
    force, fraud or undue influence. This application of mind has to be on<\/p>\n
    very first date when the court adjourns the matter for conciliation or for<\/p>\n
    statutory period and must reveal itself in the court order then passed.\n<\/p>\n
    The said order must also disclose that the court had satisfied itself that<\/p>\n
    the matter fulfilled all requirements of law relevant at that stage. The<\/p>\n
    earlier order & impugned judgment delivered by the Trial Court or by<\/p>\n
    the Lower Appellate Court does not show that any such satisfaction was<\/p>\n
    reached or recorded by the Trial Court.       The final order passed on<\/p>\n
    16.02.2008 by the Civil Judge, Senior Division, reveals that even the<\/p>\n
    date from which the parties were staying separately has not been<\/p>\n
    mentioned any where in it, and the compliance with Section 23[1][bb]<\/p>\n
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\n                                         14<\/span><\/p>\n
    is also not recorded. It only mentions in paragraph no.4 that dispute<\/p>\n
    between the parties could not be settled by their relatives. In paragraph<\/p>\n
    No.5 it has been mentioned that the petition was jointly presented on<\/p>\n
    04.04.2008 and statutory period of 6 months was given to parties to<\/p>\n
    find out genesis of settlement between them and thee was no fruitful<\/p>\n
    settlement. Thus there was no endeavor by the Court below to find out<\/p>\n
    whether any conciliation was possible or not. The said judgment of trial<\/p>\n
    Court was then questioned by wife by filing Appeal under Section 28 of<\/p>\n
    the   Hindu   Marriage   Act   in   the   Court of     District     Judge      at<\/p>\n
    Pandharkawada.     In appeal memo in paragraph no.13 it has been<\/p>\n
    specifically averred that there was no separation and the averment in<\/p>\n
    the application before the trial Court were false. It is also pleaded that<\/p>\n
    false affidavit was prepared and wife was compelled by the husband to<\/p>\n
    put her signature on it. These contentions are not considered by the<\/p>\n
    Lower Appellate Court. It appears that the Advocate who was jointly<\/p>\n
    representing the husband and wife before the Trial Court appeared on<\/p>\n
    behalf of respondent to oppose the appeal of wife. The lower Appellate<\/p>\n
    Court should not have permitted such appearance, particularly in view<\/p>\n
    of the ground of compulsion or force by the wife. Appellate Court has<\/p>\n
    found that in affidavit dated 6.10.2008 both the parties mentioned that<\/p>\n
    they were residing separately from February 2007 and hence condition<\/p>\n
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\n                                           15<\/span><\/p>\n
    precedent required under section 13[B] was satisfied. The contentions<\/p>\n
    of appellant \/ wife that her signature was obtained by pressurizing her<\/p>\n
    or then the averment in their affidavit were false, are ignored and the<\/p>\n
    fact that statutory requirement of recording satisfaction in this respect<\/p>\n
    cast upon the Trial Court by section 23 is not fulfilled, is also ignored.\n<\/p>\n
    Thus the appeal came to be dismissed only by accepting the disputed<\/p>\n
    affidavit as sufficient compliance.\n<\/p>\n
    10.<\/p>\n
               Both the judgments are therefore delivered mechanically<\/p>\n
    without any application of mind to the provisions of Law in the matter.\n<\/p>\n
    The obligation cast upon court by legislature while dissolving marriage<\/p>\n
    by consent is overlooked and its object has been defeated in this case.\n<\/p>\n
    The institution of marriage is sacred and marriage tie is not to be easily<\/p>\n
    broken. The requirement to verify the voluntary nature of consent,<\/p>\n
    provision of a period of separation, duty to attempt to conciliate and<\/p>\n
    waiting period of 6 months in court all show the seriousness with which<\/p>\n
    the parties as also the courts of law have to evaluate the facts. Here,<\/p>\n
    both the courts have acted mechanically thereby defeating the statutory<\/p>\n
    protection extended to week spouse by law.            The judgments are<\/p>\n
    therefore unsustainable.\n<\/p>\n
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\n                                        16<\/span><\/p>\n
    11.        Advocate Shri De, however has also raised contention that as<\/p>\n
    divorce has been obtained by mutual consent, the decree is consent<\/p>\n
    decree and hence appeal is not maintainable.           In     Smt. Krishna<\/p>\n
    Khetarpal .vrs. Satish Lal (supra), the Hon’ble Division Bench of that<\/p>\n
    High Court has considered the identical challenge in paragraph nos. 3 to<\/p>\n
    6 and concluded that appeal against such decree is maintainable. It has<\/p>\n
    been held that Section 28[1] of Hindu Marriage Act provides a right of<\/p>\n
    appeal and all original decrees made by the Trial Court under the said<\/p>\n
    Act are appealable. The decree of divorce by mutual consent is one<\/p>\n
    such decree & hence, also appealable. It has been observed that appeal<\/p>\n
    under section 96 of C.P.C. is on different footing and Section 96[3]<\/p>\n
    prescribing a bar of appeal against consent decree has no application. In<\/p>\n
    paragraph no.5, it is observed that a decree for divorce by mutual<\/p>\n
    consent is not based merely on mutuality of the consenting parties, but<\/p>\n
    the courts involvement in the decision making is inextricably a part of<\/p>\n
    such decree. Possibility of an error, legal or factual, in such decision<\/p>\n
    cannot be ruled out, and therefore, appeal under section 28 has been<\/p>\n
    provided for. Another Division Bench of that High Court in the case of<\/p>\n
    Charanjit Singh Mann .vrs. Neelam Maan (AIR 2006 P & H 201), has in<\/p>\n
    paragraph no.25, cited this judgment with approval.                AIR 2007<\/p>\n
    Jharkhand 34 –Smt. Hina Singh .vrs. Satya Kumar Singh, is again the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:25:38 :::<\/span>
\n                                        17<\/span><\/p>\n
    judgment of Division Bench of Hon’ble Jharkhand High Court wherein<\/p>\n
    provisions of Order 23 Rule 3 of C.P.C. are considered and ultimately in<\/p>\n
    paragraph no.3 it has been held that appeal against decree of divorce by<\/p>\n
    mutual consent is maintainable. In view of these judgments which<\/p>\n
    correctly & clearly clinch the issue, I find that appeal against such<\/p>\n
    consent decree is maintainable.\n<\/p>\n
    12.        Legislature has cast obligations upon Court entertaining the<\/p>\n
    proceedings under section 13[B] to record a finding that consent for<\/p>\n
    divorce has not been obtained by force, fraud or undue influence. Thus<\/p>\n
    legislature has visualised that there may be a case in which consent for<\/p>\n
    divorce may be obtained and decided to provide a safeguard against<\/p>\n
    abuse of this provision. Hence obligation has been cast upon the court<\/p>\n
    to verify the same, and to record a satisfaction that the consent given by<\/p>\n
    the parties is free and voluntary. Thus having visualized abuse of such<\/p>\n
    provision for grant of divorce by mutual consent by use of force, fraud<\/p>\n
    etc., it cannot be accepted that legislature did not provide for a remedy<\/p>\n
    to the spouse aggrieved in such matters. To hold that remedy of appeal<\/p>\n
    is not available to such aggrieved spouse, will be rendering nugatory the<\/p>\n
    exercise of obligation cast upon the trial court by the Legislature. I<\/p>\n
    therefore find that the arguments of Advocate Shri De about tenability<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:25:38 :::<\/span>
\n                                        18<\/span><\/p>\n
    of appeal against such consent divorce decree are liable to be rejected.\n<\/p>\n
    13.        In view of this consideration, it has to be held that the appeal<\/p>\n
    as filed by the appellant \/ wife before the Lower Appellate Court and<\/p>\n
    before this Court is legally maintainable and question no.2 needs to be<\/p>\n
    answered accordingly in affirmative in her favour.\n<\/p>\n
               Question no.3 about indulgence in perjury by the appellant<\/p>\n
    wife cannot be answered at this stage in absence of sufficient material,<\/p>\n
    as it is found to be premature. No remand or calling of report from trial<\/p>\n
    court in that respect is necessary as even otherwise the trial court has to<\/p>\n
    look again into the voluntary nature of wife’s consent.\n<\/p>\n
               Question no.1 is answered in favour of the wife by holding<\/p>\n
    that there is no compliance with provisions of Section 23[1][bb] of the<\/p>\n
    Hindu Marriage Act.\n<\/p>\n
    14.        In the circumstances, the judgment and decree dated<\/p>\n
    06.10.2008    delivered    by   the     Civil   Judge,     Senior       Division,<\/p>\n
    Pandharkawada (Kelapur) in H.M.P. No. 24\/2008 is hereby quashed<\/p>\n
    and set aside. Similarly, the judgment and decree dated 06.12.2008<\/p>\n
    delivered by the District Judge-I, Pandharkawada in Regular Civil<\/p>\n
    Appeal No. 68\/2008 is also quashed and set aside. H.M.P. No.24\/2008<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:25:38 :::<\/span>
\n                                         19<\/span><\/p>\n
    is restored back to the file of Civil Judge, Senior Division,<\/p>\n
    Pandharkawada for its further trial in accordance with law. Second<\/p>\n
    Appeal is accordingly allowed. However, in the circumstances of the<\/p>\n
    case there shall be no order as to cost.\n<\/p>\n
                                                          JUDGE<\/p>\n
    Rgd.\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:25:38 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-178532","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nLaxmibai Ward vs Shri Pramod on 17 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/laxmibai-ward-vs-shri-pramod-on-17-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Laxmibai Ward vs Shri Pramod on 17 March, 2009 - 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