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TMI Blog2009 (9) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2004. As required under the provisions of Section 13B of the aforesaid Act, the learned Second Additional District Judge, Chhindwara, fixed the date for consideration of the petition after six months so as to give the parties time to reconsider their decision. On 7th March, 2005, after the expiry of six months, the learned Second Additional District Judge, Chhindwara, took up the matter in the presence of both the parties who were present in the Court. While the appellant husband reiterated his earlier stand that a decree of mutual divorce should be passed on account of the fact that it was not possible for the parties to live together, on behalf of the respondent wife it was submitted that despite serious differences which had arisen between them, she did not want the marriage ties to be dissolved. On account of withdrawal of consent by the respondent wife, the [Learned Judge dismissed the joint petition under Section 13B of the Act] 4. Aggrieved by the order dated 17th March, 2005, passed by the learned Second Additional District Judge, Chhindwara, the appellant filed an appeal under Section 28 of the Act in the High Court of Madhya Pradesh at Jabalpur on 4th April, 2005, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing of the final decree. Reference was made to the decision in Ashok Hurra's case (supra), which also involved a petition under Section 13B of the Act. 7. However, the facts of the said case were a little different from those in the instant case. In the said case, after six months from the date of filing of the petition under Section 13B, an application was filed by the husband alone for a decree of divorce on the petition under Section 13B of the Act. Not only did the wife not join in the said application, she made a separate application for withdrawal of consent given by her for mutual divorce after the expiry of 18 months from the date of presentation of the divorce petition. At this juncture, reference may be made to the provisions of Section 13B of the above Act and the same is extracted hereinbelow: 13B. 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 livin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and that in the event, either of the parties withdrew the consent before passing of the final decree, the petition under Section 13B of the Hindu Marriage Act would not survive and would have to be dismissed. 9. Subsequently, however, in Ashok Hurra's case (supra), doubts were expressed by this Court with regard to certain observations made in Sureshta Devi's case (supra) and it was felt that the same might require re-consideration in an appropriate case. Basing its decision on the doctrine of irretrievable break-down of marriage, the Hon'ble Judges were of the view that no useful purpose would be served in prolonging the agony of the parties to a marriage which had broken down irretrievably and that the curtain had to be rung down at some stage. It was further observed that the court had to take a total and broad view of the ground realities of the situation while dealing with adjustment of human relationships. Their Lordships placed reliance on the decision of this Court in Chandrakala Menon (Mrs.) and Anr. v. Vipin Menon (Capt.) and Anr. (1993) 2 SCC 6, in arriving at such a conclusion. In the said case, although, indisputably consent for the petition under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e : (2002) 10 SCC 194, while hearing a transfer petition, invoked its jurisdiction under Article 142 of the Constitution, and directed the parties to file a joint petition before the Family Court at Bandra, Mumbai, under Section 13B of the Hindu Marriage Act, 1955, for grant of a decree of divorce by mutual consent, along with a copy of the terms of compromise arrived at between the parties. This Court also directed that on such application being made, the Family Court could dispense with the need of waiting for six months as required by Sub-section (2) of Section 13B of the Act and pass final orders on the petition within such time as it deemed fit. This Court directed the Presiding Judge to take appropriate steps looking to the facts and circumstances of the case emerging from the pleadings of the parties and to do complete justice in the case. 14. Again in the case of Swati Verma (Smt. ) v. Rajan Verma and Ors. (2004) 1 SCC 123, which was a transfer petition, the doctrine of irretrievable break-down of marriage was invoked. Pursuant to a compromise arrived at between the parties and leave granted by this Court, an application was filed under Section 13B of the Hindu Marriage Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under Sections 13 or 13B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13 and 13B of the Hindu Marriage Act, 1955. 18. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he still continues to enjoy the property and insists on living separately from the husband. 21. While, therefore, following the decision in Smt. Sureshta Devi's case we are of the view that this is a fit case where we may exercise the powers vested in us under Article 142 of the Constitution. The stand of the respondent wife that she wants to live separately from her husband but is not agreeable to a mutual divorce is not acceptable, since living separately is one of the grounds for grant of a mutual divorce and admittedly the parties are living separately for more than seven years. 22. The appeal is, therefore, allowed. The impugned judgment and order of the High Court is set aside and the petition for grant of mutual divorce under Section 13B of the Hindu Marriage Act, 1955, is accepted. There will be a decree of divorce on the basis of the joint petition filed by the parties before the Second Additional District Judge, Chhindwara, under Section 13B of the Hindu Marriage Act, 1955, in respect of the marriage solemnized between the parties on 22nd June, 1985, according to Hindu rites and customs and the said marriage shall stand dissolved from the date of this judgment. 23. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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