S. 13-B

Supreme Court e@Journal

www.PLRonline.in

Hindu Marriage Act, 1955 (25 of 1955) S. 13-B - Divorce by mutual consent - Both the parties are supposed to move second motion not earlier than six months after the date of presentation of the petition for divorce by mutual consent - It implies that even during second motion, mutual consent shall subsist; otherwise, there would have been no scope for both the parties to join together for making second motion - Mutual consent shall be expressed by both parties together - If one of the parties backs out of the mutual consent for whatever reason it may be, the petition for divorce by mutual consent is liable to be dismissed. (177) P.L.R.
Hindu Marriage Act, 1955 (25 of 1955) S. 13-B - For dissolution of marriage by mutual consent - The appellant as recorded by the trial Court, paid Rs.6 lakhs to the respondent as permanent alimony - The respondent, however, did not make a statement at the stage of second motion, leaving no option with the trial Court but to dismiss the petition - The appellant's prayer, in the context of aforesaid facts, for restitution of Rs.6 lakhs must necessarily succeed (Restitution application would be in the same Court) - Matter remitted to the District Judge (Family Court) - Civil Procedure Code, 1908 (V of 1908) S. 144. (182) P.L.R.
Hindu Marriage Act, 1955 (25 of 1955) S. 13-B - Legislature in its wisdom did not introduce any relaxation in Section 13-B of the Act - There is nothing in the language of Section which can suggest that the provisions of Section 13-B of the Act are simplicitor procedurally directed and can be moulded by the court in exercise of its judicial discretion depending on the facts and circumstances of a case - This provision is intended to liberalise the provisions relating to divorce - The Legislature chose not to add any Proviso granting relaxation to the conditions imposed under Section 13B(1) and/or 13B(2) of the Act. (177) P.L.R.
Hindu Marriage Act, 1955 (25 of 1955) S. 13-B - Petition under Section 13-B of the Act is founded upon mutual consent - An adverse inference or an inference of consent cannot be drawn against a party which refuses to make a statement at second motion - The trial Court, therefore, rightly dismissed the petition - A party receives an amount, at the stage of first motion, in view of parties mutually agreeing to bring the marriage to an end - If the party that receives money retracts from mutual consent, such a party would, in our considered opinion, be required to restitute the amount so received.(181) P.L.R.
Hindu Marriage Act, 1955 (25 of 1955) S. 13-B - Terms and conditions mutually arrived at between the parties before filing the petition under Section 13-B of the Act would disclose that the respondent had agreed to have the custody of the child born to them and also agreed to receive a sum of Rs.5 lacs in lump-sum, not only for her maintenance, but also for the maintenance of the child - Trial Court without any issue having arisen as regards the lien of the minor over the property of the appellant or his father, chose to grant lien over the property of the appellant and his father - Trial Court is not supposed to issue such directions in its whims and fancies - Trial Court cannot traverse beyond the mutual consent agreed between the parties, while passing a decree under Section 13-B of the Hindu Marriage Act, 1955 - The trial Court also can pass an order for maintenance under the scheme of Sections 25 and 26 of the Act only on the agreed terms of the parties while passing a decree by mutual consent invoking the provision under Section 13-B of the Act. (180) P.L.R.
Hindu Marriage Act, 1955 (25 of 1955) S. 13-B - Trial Court wrongly compelled the presence of the petitioner for making statement at the second motion, especially when he had constituted his brother, as his attorney - At the most, the trial Court could satisfy itself, as to whether attorney brother of the petitioner is his duly and validly constituted attorney or not - It is found that he is his lawfully constituted attorney, in that event, his statement shall be recorded at the second motion and the petition be disposed of, in terms of the statements of respondent, as also of attorney of the petitioners. (175) P.L.R.
Hindu Marriage Act, 1955 (25 of 1955) S. 13-B - Wife having received the amount on the representation that she agrees to give divorce at the time of first motion of the proceedings of the joint petition but later on her refusal for divorce at the second motion, though legal, would necessarily imply that the benefit that she received on her representation for divorce is to be refunded and restored. (175) P.L.R.