1983 0 AIR(Kar) 235; 1983 0 ILR(Kar) 94; 1982 0 Supreme(Kar) 226;

Karnataka High Court

Judges : K.Jagannatha Shetty,M.S.Patil

K.KRISHNAMURTHY RAO - Appellant

Versus

KAMALAKSHI - Respondent

Misc. First Appeal 778 Of 1982

Decided On : 10/15/1982

HINDU MARRIAGE ACT : S.13(b)(1), S.23(1)

SHETTY, J.

( 1 ) THIS appeal by the husband is directed against the order dated Nov. 3, 1981, passed by

the civil Judge, Udupi, on an application for divorce filed under Section 13-B of the Hindu marriage

Act, 1955.

( 2 ) KAMALAKSHI-RESPONDENT is the wife of the appellant. They were married in the year

1972. They have got a female child born in Jan. , 1976. After the child was born the couple did not

live together. The wife lived in her parental house and husband as usual in his place of

occupation. It is the case of the wife that her husband did not invite or take her, whereas the case

of the husband is that his wife has had no desire to reunite.

( 3 ) IN 1980, they presented a joint petition in the Court of Civil Judge, Udupi, for dissolution

of marriage stating that they have been living separately; that they have not been able to live

together and they have mutually agreed that the marriage should be dissolved. The husband,

along with the petition, has deposited Rs, 15,000/- as the agreed sum payable to his wife and child

for their maintenance.

( 4 ) IN support of the averments in the petition, the parties have also examined themselves.

The wife in her evidence has stated that her husband had never forced her to sign the petition for

divorce, but was telling that she was not mentally allright and she could not join her husband since

he has not taken her to his house. On the basis of this statement, the Court below observed:

"from the testimony of P. W. 2 it is evident that she is willing to live with her husband provided

he taken her and it looks as though he has not taken steps to take her to his house after the birth

of the child. This would only go to show that it is possible for them to live together if P. W. 1 makes

attempt to take P. W. 2 to his house. "

With this conclusion, the petition was rejected.

( 5 ) THE parties have appealed to this Court for relief contending that the condition of the

Court below was arbitrary and unsustainable.

( 6 ) THE relevant provisions bearing on the question of relief to be granted to the parties are,

sections 13-B (1) and 23 (1) (bb) of Hindu Marriage Act. Section 13-B (1) provides:

"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 they have mutually agreed that the

marriage should be dissolved. "

Section 23 (1) (bb) reads: "in any proceeding under this Act, whether defended or not, if the

Court is satisfied that - (bb) when a divorce is sought on the ground of mutual consent, such

consent has not been obtained by force, fraud or undue influence, then, and in such a case, but

not otherwise, the Court shall decree such relief accordingly. "

( 7 ) THESE two sections, upon analysis, demand proof on the following requirements: (I)

That the parties have been living separately for a period of one year or more; (ii) that they have not

been able to live together; (iii) That they have mutually agreed that the marriage should be

dissolved; and (iv) That the consent of the parties has been obtained not by force, fraud or undue

influence.

( 8 ) IN Rayden on Divorce (12th Edn. , page 221), it is stated: consent: Meaning --- "consent

must mean true, voluntary consent, not so-called consent obtained by submission to force or

threats or the like. . . . . . . . . The point of time at which consent is relevant for the pronouncement

of the decree is the date of the hearing of the petition". In other words, the consent must continue

to decree and must be valid, subsisting consent when the case is heard.

( 9 ) THE Court shall be satisfied that the consent of the parties has been obtained not by

force, fraud or undue influence. Although, the relationships between the husband and wife is not

recognised to be the special relationship that raises presumption in favour of undue influence, the

court should exercise a greater care and use its hind sight to find out whether the consent

accorded by the weaker section is free and not by force, fraud or undue influence. The duty to

ascertain this fact would be greater when the parties are not very much educated. Besides, when

there is no contest between the parties, there would be little or no effective cross-examination. The

Court, therefore, would not be unjustified if it closely questions the parties to ascertain the nugget

of truth behind the impulse to get the marriage dissolved.

( 10 ) WE gave our anxious consideration to the matter before us. We also asked the parties

to be present in Court. We closely questioned them individually to ascertain their inherent feelings

and also considered the material on record.

( 11 ) IT seems to us that the Court below was in error in holding that the wife could not live

with her husband because the latter has not taken her to his house. The parties, in our opinion,

are not at all willing to live together. They have been living separately from 1976. There was no

attempt by the wife to join the husband. Nor there was any attempt by the husband in that regard.

The fact remains that they have not been able to live together from 1976. We are satisfied that the

parties have reached a position where redemption is an impossibility. Their consent to the joint

petition to dissolve the marriage was and is voluntary and true and any conclusion to the contrary

would be non sequitur.

( 12 ) OUR effort to effect a reconciliation has also not yielded any fruitful result. The wife is

confident that she can take care of herself and also her child with the amount of Rs. 15,000/- paid

by her husband. There is, therefore, no reason to withhold the relief prayed for.

( 13 ) IN the result, the appeal is allowed. In reversal of the order of the Court below, there

shall be dissolution of the marriage by a decree of divorce.

( 14 ) THE amount of Rs. 15,000/- which is lying in deposit in the Court below shall be paid to

the wife-respondent.

( 15 ) A copy of this shall be given to the parties, free of cost.

( 16 ) APPEAL allowed.