2009(2) ALL MR 404
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P.B. MAJMUDAR AND R.P. SONDURBALDOTA, JJ.

Smt. Jatina Samir Shah Nee Jatina Rasiklal Thakkar (Udadkat)Vs.Shri. Samir Mohit Shah

Family Court Appeal No.160 of 2008

7th October, 2008

Petitioner Counsel: Mr. J. J. SHAH
Respondent Counsel: Mr. L. C. JOSHI

Hindu Marriage Act (1955), S.13(b) - Divorce by mutual consent - Agreement between parties regarding mutual divorce - A Marriage can never be said to be dissolved merely by entering into such an agreement by the spouses.

Simply because an agreement was produced along with the original application showing that the marriage has been dissolved by entering into an agreement in this behalf can never be said to be a ground for coming to the conclusion that the marriage was not subsisting on the date of the filing of the application. The spouses cannot dissolve the marriage on their own by entering into any sort of agreement and such type of agreement cannot be recognised by the court of law unless satisfactory evidence is led before the court, that by virtue of custom, a customary divorce has been obtained by them. In the instant case, the family court has not recorded any finding that the marriage was legally dissolved by entering into such an agreement on the basis of any custom. Unless there is any evidence in this behalf, an agreement produced before the court was nothing but a mere piece of paper which has no evidentiary value at all. By entering into such an agreement, a marriage can never be said to be dissolved in any manner. The Judge, therefore, committed an error in coming to the conclusion that in view of the agreement between the parties there was no subsisting marriage between the appellant and respondent at the time of filing of the application and that such marriage stood dissolved at the time of filing of this application. No weightage can be given to such an agreement by the court and therefore it can be said that the marriage was subsisting irrespective of such an agreement on the date of filing of the application. No marriage can be said to have been dissolved by entering into such type of agreement, unless an appropriate evidence is produced before the Court showing that a marriage can be dissolved between the parties by way of customary divorce, in view of prevailing custom in the community. In the instant case, no such evidence is produced and therefore the marriage can be said to be subsisting and it can on the date of the filing of the application and such marriage can be dissolved only by passing a decree by the competent court. A.I.R. 2005 SC 422 - Rel. on. [Para 6]

Cases Cited:
Ramesh Chandra Rampratapji Daga Vs. Rameshwari Ramesh Chandra Daga, A.I.R. 2005 SC 422 [Para 6]
Subramani Vs. M. Chandralekha, 2005(5) ALL MR 145 (S.C.)=AIR 2005 SC 485 [Para 7]


JUDGMENT

P. B. MAJMUDAR, J.:- Admit.

2. Mr. L. C. Joshi, the learned counsel waives service on behalf of respondent. With the consent of both the sides, this Appeal is taken up for final hearing today.

3. This appeal is directed against the judgment and order passed by Family Court No.6, Bandra, Mumbai dated 20th November, 2007 in Petition No.F-646 of 2007, by which the learned Judge dismissed the same on the ground that the pre-requisite condition of filing of the petition for divorce by mutual consent is not satisfied, as in view of the agreement executed by the parties regarding mutual divorce, it cannot be said that on the date of filing the application, the relationship of husband and wife was subsisting. The appellant and respondent herein had submitted the said petition for mutual divorce under Section 13(b) of The Hindu Marriage Act, 1955 for dissolution of marriage by mutual consent. The marriage between the appellant and respondent was solemnized on 2nd February, 2006 and however, they realised that it is not possible for them to continue the matrimonial tie any further and they separated from each other, in the second week of June, 2006. Since then, the appellant-wife is residing with her parents. A joint petition thereafter was submitted on 10th May, 2007 under Section 13(b) of the Hindu Marriage Act. Along with the application a document relating to divorce by mutual consent was also annexed. The parties interse agreed by the said agreement that the marriage solemnized between them is hereby dissolved by mutual consent. Clause 6 in the said agreement provides as under :-

"6. Hence ,the marriage solemnized between the parties on 2nd February, 2006 is hereby dissolved by mutual consent."

4. The learned Judge of the Family Court rejected the said application on the ground that on the date of presenting the application, the marriage was already dissolved by mutual agreement and therefore it cannot be said that the appellant and the respondent were the husband and wife on the relevant date i.e. on the date of filing of the application and since the relationship between them was not subsisting at the time of filing of the application. In view of the agreement produced on record, the learned Trial judge was of the opinion that the petition filed by the spouses whose marriage already stood dissolved prior to filing of the petition, cannot present such petition as no relationship is in existence and on that basis the application was dismissed.

5. At the time of the hearing of this Appeal, it is pointed out by both the advocates that the appellant and respondent both are educated people, as the appellant-wife is an Architect and the respondent-husband is a Chemical Engineer and they have realised that it is not possible for them to stay together and that decree for dissolution of marriage under Section 13(b) of the Hindu Marriage Act is required to be passed. It is submitted that the learned Trial judge has committed an error in dismissing the petition on the ground that the same is not maintainable.

6. We have gone through the judgment of the learned trial judge and we have also gone through the documents. We have also gone through the original application as well as the document which was annexed with the original application. The principal question which is required to be considered is as to whether a joint petition filed by the appellant and respondent herein before the trial court was maintainable. In this connection, it is required to be noted that simply because an agreement was produced along with the original application showing that the marriage has been dissolved by entering into an agreement in this behalf can never be said to be a ground for coming to the conclusion that the marriage was not subsisting on the date of the filing of the application. The spouses cannot dissolve the marriage on their own by entering into any sort of agreement and such type of agreement cannot be recognised by the court of law unless satisfactory evidence is led before the court, that by virtue of custom, a customary divorce has been obtained by them. In the instant case, the family court has not recorded any finding that the marriage was legally dissolved by entering into such an agreement on the basis of any custom. Unless there is any evidence in this behalf, an agreement produced before the court was nothing but a mere piece of paper which has no evidentiary value at all. By entering into such an agreement, a marriage can never be said to be dissolved in any manner. The learned Judge, therefore, in our view, committed an error in coming to the conclusion that in view of the agreement between the parties there was no subsisting marriage between the appellant and respondent at the time of filing of the application and that such marriage stood dissolved at the time of filing of this application. No weightage can be given to such an agreement by the court and therefore it can be said that the marriage was subsisting irrespective of such an agreement on the date of filing of the application. No marriage can be said to have been dissolved by entering into such type of agreement, unless an appropriate evidence is produced before the Court showing that a marriage can be dissolved between the parties by way of customary divorce, in view of prevailing custom in the community. In the instant case, no such evidence is produced and therefore the marriage can be said to be subsisting and it can on the date of the filing of the application and such marriage can be dissolved only by passing a decree by the competent court. In this connection, reference is required to be made to the decision of the Supreme court in the case of Ramesh Chandra Rampratapji Daga Vs. Rameshwari Ramesh Chandra Daga reported in A.I.R. 2005 SC 422. In the said judgment it has been held by the Supreme Court in para-12 that "A Hindu marriage can be dissolved only in accordance with the provisions of the Act by obtaining a decree of divorce from the Court. In the absence of any decree of dissolution of marriage from the Court, it has to be held that in law the first marriage of the wife subsisted when she went through the second marriage with the present husband".

7. In the case of Subramani and Others Vs. M. Chandralekha, AIR 2005 SC 485 : 2005(5) ALL MR 145 (S.C.), reported in the same Volume, it has been held by the Supreme court that paragraph No.15 that "such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such a custom since the said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy".

In the instant case, in view of the same, in our view, the trial court has committed an error in coming to the conclusion that there was no subsisting marriage between the parties on the date of presentation of the application under Section 13(b) of the Hindu Marriage Act. The trial court should have ignored the agreement regarding mutual divorce.

8. In view of what is stated above, normally the matter is required to be send back, however, it is pointed out by both the advocates that when both sides have agreed to separate, this court, instead of sending the matter back to the trial court, may entertain the application and pass an appropriate order as per Section 13(b) of the Hindu Marriage Act. We have accordingly interviewed the appellant and respondent and we are satisfied that it is not possible to save the marriage as they have hardly stayed together for few months after marriage and since considerable time they are staying separately. The statutory requirement under Section 13(b) is also satisfied in the instant case. Considering the aforesaid aspect of the matter, the original application submitted under Section 13(b) of the Hindu Marriage Act, is allowed. The marriage between the appellant and respondent stands dissolved by passing decree under Section 13(b) of the Hindu Marriage Act. It is pointed out to the court that nothing is required to be paid in any manner to any one. The marriage between the appellant and the respondent accordingly stands dissolved. The copy of the original application which is produced before us is taken on record and marked 'X'. As pointed earlier, we have satisfied that the requirement under Section 13(b) of the Hindu Marriage Act is satisfied. At the time of filing of the original application under Section 13(b) of the Hindu Marriage Act and at the time of filing of the petition, the marriage between the spouses was already subsisting irrespective of any agreement executed by them. This appeal is accordingly allowed by setting aside the order of the trial Court in the aforesaid terms. No order as to costs.

Appeal allowed.