Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3465 OF 2009
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 17402 OF 2008)
Smruti Pahariya .....Appellant(s)
- Versus -
Sanjay Pahariya ....Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. The wife, who is the appellant before this
Court, filed this appeal seeking to impugn
the judgment and order dated 5.6.2008
passed by the High Court of judicature at
1
Bombay, which in a detailed judgment, was
pleased to set aside the judgment and
decree dated 5.12.2007 passed by the
Family Court, Mumbai, in which the Family
Court, dissolved the marriage between the
appellant and the respondent by a decree
of divorce on mutual consent under Section
13B of the Hindu Marriage Act, 1955
(hereinafter “the said Act”).
3. Admittedly, the parties are Hindu and
governed by the provisions of the said Act
and they were married on 5.3.1993 at
Mumbai following the Hindu Vedic rites.
Marriage was also registered. After
marriage, the parties resided together in
nd
Flat No. 601, 2 Floor, Dinath Court, Sir
Pochkhanwala Road, Worli, Mumbai. Two
sons were born to them, one on 1.2.1995
and the other one on 3.4.1997. A few
years after that, serious differences and
incompatibility surfaced between them and
2
all attempts of settlement failed. The
parties stopped living together from
January 2005 and decided to file a
petition seeking divorce by mutual consent
under Section 13B of the said Act. A
joint petition to that effect was filed
before the Family Court at Bandra, Mumbai
and the same was registered on 19.5.2007.
It was averred therein that
incompatibility with each other made it
difficult for them to co-exist and they
stopped cohabiting as husband and wife
from January 2005 (para 6). In paragraph
13, it was stated that there was no
collusion between the parties in filing
the petition for divorce by mutual consent
and in paragraph 17 it was pointed out
that there is no force or coercion between
the parties in filing the petition. Along
with the said petition, certain consent
terms were also filed but with those terms
we are not concerned in this proceeding.
3
4. Under the provisions of Section 13B (2) of
the said Act, a minimum period of six
month has to elapse before such petition
can be taken up for hearing. In the
instant case, the said period expired on
or about 19.11.2007. In between, two
dates were given, namely, 14.6.2007 and
23.8.2007 when the parties were given a
chance for counselling but on both the
days parties were absent and no
counselling took place.
5. On 19.11.2007, after the mandatory period
of six months, the matter came up before
the Family Court. It appears from the
affidavit filed by the wife in this
proceeding before the Bombay High Court
that on 3.11.2007, advocate of the parties
informed the husband that the matter will
be listed on 19.11.2007 and a draft
affidavit of deposition was sent to him
4
through E-mail. It is not in dispute that
both the parties had the same advocate.
It also appears from the affidavit of the
wife that on 18.11.2007 the advocate
received a text SMS in his mobile from the
respondent-husband that he is unable to
attend the court on 19.11.2007.
Therefore, on 19.11.2007, when the matter
appeared for the first time before the
Court, the husband was absent and the
Family Court asked the advocate to inform
the husband of the next date of hearing of
the matter, which was fixed on 1.12.2007.
6. On 19.11.2007 itself, an application was
made by the wife to summon the husband
directing him to be present in the Family
court on the next date. Accordingly,
summons were sent by the Court on
23.11.2007 by courier and the courier
returned with the remark “not accepting”.
In this connection, the order which was
passed by the Family Court, on 1.12.2007,
5
on perusal of the service report is of
some importance. The following order was
passed on the service return:
“Perused the first summons and
subsequent orders thereto. I have seen
service affidavit also, states that
servant was present. Hence I am not able
to accept it as a proper one. The courier
endorsement is also vague. Considering
the contents in affidavit, I allow
petitioner No.1 to serve the notice by
pasting on the address given in cause
title to petitioner No.2. EPSB allowed.
It is made returnable on 4.12.2007.”
7. The petition was thus made returnable on
4.12.2007. It appears that the bailiff
pasted the summons on 3.12.2007 outside
the door of the husband’s residence and
the matter came up before the Family Court
on 4.12.2007 and on that day the husband
was absent. The Family Court adjourned
the matter to 10.12.2007. But on
5.12.2007, the wife, filed a petition
before the Family Court with a prayer that
the hearing of the matter may be pre-poned
6
and be taken up on the very same day i.e.
5.12.2007. On the aforesaid prayer of the
wife, though the matter was not on the
board, it was taken on the board by the
Family Court on 5.12.2007 and the decree
of divorce was passed ex-parte on that
date itself.
8. It may be mentioned in this connection
that the Family Court pre-poned the
hearing on wife’s application and in the
absence of the husband. Admittedly, the
pre-ponement was done ex-parte.
9. In the background of these facts,
basically four questions fall for our
consideration:
I. Whether impugned decree of divorce
passed by the Family Court on 5.12.2007
is vitiated by procedural irregularity?
7
II. Whether by conducting the
proceeding, in the manner it did, the
Family Court acted contrary to the avowed
object of the Family Courts Act, 1984?
III. Whether from the absence of the
husband before the Family Court on
19.11.2007, 1.12.2007 and 4.12.2007 it
can be inferred that his consent for
grant of divorce on a petition on mutual
consent subsists, even though he has not
withdrawn the petition for divorce on
mutual consent?
IV. Whether on a proper construction of
Section 13B (2) of the said Act, which
speaks of ‘the motion of both the
parties’, this Court can hold that the
Family Court can dissolve a marriage and
grant a decree of divorce in the absence
of one of the parties and without
actually ascertaining the consent of that
8
party who filed the petition for divorce
on mutual consent jointly with the other
party?
10. This fourth question assumes general
importance since it turns on the
interpretation of the section. Apart from
that, this question is relevant here in
view of various recitals in the judgment
and decree of the learned Judge of the
Family Court. It appears that the Family
Court granted the decree of divorce by
proceeding on the presumption of
continuing consent of the husband.
11. While dealing with the first question
about procedural irregularity in the
matter, this Court finds that the Family
Court did not act properly even if it is
held that it was correct in presuming the
continuing consent of the respondent-
husband.
9
12. From the sequence of events, it appears
that on 19.11.2007 when the matter came up
before the Court, the first day after the
mandatory period of six months, the
husband was absent. The Court directed
service of summons on the husband on the
request of the wife. The service return
was before the Court on 1.12.2007.
Looking at the service return, the Court
found that service was not a proper one
and the Court was also not satisfied with
the endorsement of the courier. Under
such circumstances, the Court’s direction
on the prayer of the appellant-wife, for
substituted service under Order 5 Rule 20
of the Civil Procedure Code is not a
proper one. Direction for substituted
service under Order 5 Rule 20 can be
passed only when Court is satisfied “that
there is reason to believe that the
defendant is keeping out of the way for
the purpose of evading service, or that
10
for any other reason the summons cannot be
served in the ordinary way”.
13. In the facts of this case, the Court did
not, and rather could not, have any such
satisfaction as the Court found that the
service was not proper. If the service is
not proper, the Court should have directed
another service in the normal manner and
should not have accepted the plea of the
appellant-wife for effecting substituted
service. From wife’s affidavit asking for
substituted service, it is clear that the
servant of the respondent-husband
intimated her advocate’s clerk that
respondent-husband was out of Bombay and
will be away for about two weeks.
However, the appellant-wife asserted that
the respondent-husband was in town and was
evading. But the Court on seeing the
service return did not come to the
conclusion that the husband was evading
11
service. Therefore, the Court cannot, in
absence of its own satisfaction that the
husband is evading service, direct
substituted service under Order 5 Rule 20
of the Code.
14. Apart from the aforesaid irregularity, the
Court, after ordering substituted service
and perusing service return on 4.12.2007,
fixed the matter for 10.12.2007. Then, on
the application of the wife on 5.12.2007,
pre-poned the proceeding to 5.12.2007 and
on that very day granted the decree of
divorce even though the matter was not on
the list.
15. This Court strongly disapproves of the
aforesaid manner in which the proceeding
was conducted in this case. A Court’s
proceeding must have a sanctity and
fairness. It cannot be conducted for the
convenience of one party alone. In any
12
event, when the Court fixed the matter for
10.12.2007, it could not pre-pone the
matter on an ex-parte prayer made by the
appellant-wife on 5.12.2007 and grant the
decree of divorce on that day itself by
treating the matter on the board in the
absence of the husband. This, in our
opinion, is a flagrant abuse of the
judicial process and on this ground alone,
the decree dated 5.12.2007 has to be set
aside.
16. On this aspect, this Court endorses the
dissatisfaction expressed by the Bombay
High Court in paragraph 34 of its judgment
under appeal about the manner in which the
date of final hearing was pre-poned and an
ex-parte decree was passed.
17. While dealing with the second question it
appears that the Family Court has not
acted in a manner which is required of it
13
having regard to the jurisdiction vested
on it under the Family Courts Act.
18. The Family Courts Act, 1984 (hereinafter,
Act 66 of 1984) was enacted for adopting a
human approach to the settlement of family
disputes and achieving socially desirable
results. The need for such a law was felt
as early as in 1974 and Chief Justice P.B.
Gajendragadhkar, as the Chairman of Law
th
Commission, in the 59 report on Hindu
Marriage Act, 1955 and Special Marriage
Act, 1954, opined:-
“In our Report on the Code of Civil
Procedure, we have had occasion to emphasis
that in dealing with disputes concerning
the family, the court ought to adopt a
human approach – an approach radically
different from that adopted in ordinary
civil proceedings, and that the court
should make reasonable efforts at
settlement before commencement of the
trial. In our view, it is essential that
such an approach should be adopted in
dealing with matrimonial disputes. We
would suggest that in due course, States
should think of establishing family courts,
with presiding officers who will be well
qualified in law, no doubt, but who will be
trained to deal with such dispute in a
14
human way, and to such courts all disputes
concerning the family should be referred.”
19. Almost 10 years thereafter when the said
Act 66 of 1984 was enacted, the words of
the Chief Justice were virtually quoted in
its statement of objects and reasons.
Consistent with the said human approach
which is expected to be taken by a Family
Court Judge, Section 9 of the Act casts a
duty upon the Family Court Judge to assist
and persuade the parties to come to a
settlement.
20. In the instant case by responding to the
illegal and unjust demand of the wife of
pre-poning the proceeding ex-parte and
granting an ex-parte decree of divorce,
the Family Court did not discharge its
statutory obligation under Section 13B (2)
of the said Act of hearing the parties.
When a proceeding is pre-poned in the
absence of a party and a final order is
15
passed immediately, the statutory duty
cast on the Court to hear the party, who
is absent, is not discharged. Therefore,
the Family Court has not at all shown a
human and a radically different approach
which it is expected to have while dealing
with cases of divorce on mutual consent.
21.
Marriage is an institution of great social
relevance and with social changes, this
institution has also changed
correspondingly. However, the institution
of marriage is subject to human frailty
and error. Marriage is certainly not a
mere “reciprocal possession” of the sexual
organs as was philosophized by I. Kant
[ The Philosophy of Law page 110, W. Hastie
translation 1887] nor can it be
romanticized as a relationship which
Tennyson fancied as “made in Heaven”
[ Alymer’s Field , in Complete Works 191,
193 (1878)].
16
22. In many cases, marriages simply fail for
no fault of the parties but as a result of
discord and disharmony between them. In
such situations, putting an end to this
relationship is the only way out of this
social bondage. But unfortunately,
initially the marriage laws in every
country were ‘fault oriented’. Under such
laws marriage can be dissolved only by a
Court’s decree within certain limited
grounds which are to be proved in an
adversarial proceeding. Such ‘fault’
oriented divorce laws have been criticized
as ‘obsolete, unrealistic, discriminatory
and sometimes immoral’ ( Foster, Divorce
Law Reform; the choices before State page
112).
23. As early as in 1920 possibly for the first
time in New Zealand, Section 4 of the
Divorce and Matrimonial Causes Amendment
17
Act, 1920 gave the Court the discretion to
grant a decree of divorce to parties when
they had separated for three years under a
decree of judicial separation or
separation order by the Magistrate or
under a deed of separation or “even by
mutual consent”. Till such amendment,
divorce after separation by parties on
“mutual consent” was unknown.
24. Considering the said amendment of 1920 and
exercising the discretion the amended law
conferred on the Judge, Justice Salmond in
Lodder Vs. Lodder , [1921, New Zealand Law
Reports, 876], came to the conclusion that
it is not necessary to enquire into the
merits of the disputes between the parties
since the man and the wife had put an end
to their relationship 13 years ago and the
learned Judge found that their alienation
is “permanent and irredeemable”. The
learned Judge also felt that in the
18
circumstances of the case “no public or
private interest is to be served by the
further continuance of the marriage bond”
and a decree for its dissolution was
passed. (See page 881).
25. This seems to be the first decision of a
Court granting divorce on a ‘no-fault’
basis and because of the fact that a
marriage had broken down for all practical
purposes as parties were staying
separately for a very long time.
26. The British society was very conservative
as not to accept divorce on such a ground
but in 1943, Viscount Simon, Lord
Chancellor, in the case of Blunt Vs.
Blunt , [1943, 2 All ER 76], speaking for
the House of Lords, while categorizing the
heads of discretion which should weigh
with the courts in granting the decree of
divorce, summed up four categories but at
19
page 78 of the Report, the Lord Chancellor
added a fifth one and the views of His
Lordship were expressed in such matchless
words as they deserve to be extracted
herein below:-
“To these four considerations I would
add a fifth of a more general character,
which must indeed be regarded as of
primary importance, viz., the interest of
the community at large, to be judged by
maintaining a true balance between respect
for the binding sanctity of marriage and
the social considerations which make it
contrary to public policy to insist on the
maintenance of a union which has utterly
broken down. It is noteworthy that in
recent years this last consideration has
operated to induce the court to exercise a
favourable discretion in many instances
where in an earlier time a decree would
certainly have been refused”.
27.
In India also, prior to the amendment in
our laws by insertion of Section 13B in
the said Act, the Courts felt the
necessity for an amendment in the divorce
law. The Full Bench of the Delhi High
Court in the judgment of Ram Kali Vs.
20
Gopal Dass – ILR (1971) 1 Delhi 6, felt
the inadequacy of the existing divorce
law. Chief Justice Khanna (as His
Lordship then was) speaking for the Full
Bench came to the following conclusion:-
“...It would not be a practical and
realistic approach, indeed it would be
unreasonable and inhuman, to compel the
parties to keep up the façade of marriage
even though the rift between them is
complete and there are no prospects of
their ever living together as husband and
wife.” [See page 12].
28. In coming to the aforesaid conclusion, the
learned Chief Justice relied on the
observation of the Viscount Simon, Lord
Chancellor, in the case of Blunt Vs. Blunt
(Supra).
29. Within a year thereafter, Hon’ble Justice
Krishna Iyer, in the case of Aboobacker
Haji Vs. Mamu Koya - 1971 K.L.T. 663,
while dealing with Mohammedan Law relating
21
to divorce correctly traced the modern
trend in legal system on the principle of
breakdown of marriage in the following
words:-
“When an intolerable situation has
been reached, the partners living separate
and apart for a substantial time, an
inference may be drawn that the marriage
has broken down in fact and so should be
ended by law. This trend in the field of
matrimonial law is manifesting itself in
the Commonwealth countries these
days.”(See page 668)
30. In coming to the said finding the learned
Judge relied on the principles laid down
by Justice Salmond in Lodder Vs. Lodder
(supra).
31.
After the said amendment in 1976 by way of
insertion of Section 13B in the said Act
th
in the 74 Report of the Law Commission of
India ( April, 1978), Justice H.R. Khanna,
as its Chairman, expressed the following
views on the newly amended Section 13B:
22
“Marriage is viewed in a number of
countries as a contractual relationship
between freely consenting individuals.
A modified version of the basis of
consent is to be found in the theory of
divorce by mutual consent.
The basis in this case is also
consent, but the revocation of the
relationship itself must be consensual, as
was the original formation of the
relationship. The Hindu Marriage Act, as
amended in 1976, recognizes this theory in
section 13B.”
32.
On the question of how to ascertain
continuing consent in a proceeding under
Section 13B of the said Act, the decision
in the case of Smt. Sureshta Devi Vs. Om
Prakash – (1991) 2 SCC 25, gives
considerable guidance.
33. In Paragraph 8 of the said judgment, this
Court summed up the requirement of Section
13B (1) as follows:
“8. There are three other requirements in
sub-section (1). They are:-
(i) They have been living separately for a
period of one year.
23
(ii) They have not been able to live
together, and
(iii) They have mutually agreed that marriage
should be dissolved.”
34. In paragraph 10, the learned Judges dealt
with sub-section (2) of Section 13B. In
paragraphs 11 and 12, the learned Judges
recorded the divergent views of the Bombay
High Court [ Jayashree Ramesh Londhe v.
Ramesh Bhikaji Londhe – AIR 1982 Bom 302:
86 Bom LR 184], Delhi High Court [ Chander
Kanta v. Hans Kumar – AIR 1989 Del 73],
Madhya Pradesh High Court [ Meena Dutta v.
Anirudh Dutta – (1984) 2 DMC 388 (MP)],
and the views of the Kerala High Court
[ K.I. Mohanan v. Jeejabai – AIR 1988 Ker
28: (1986) 2 HLR 467: 1986 KLT 990],
Punjab and Haryana High Court [ Harcharan
Kaur v. Nachhattar Singh – AIR 1988 P & H
27: (1987) 2 HLR 184: (1987) 92 Punj LR
321] and Rajasthan High Court [ Santosh
Kumari v. Virendra Kumar – AIR 1986 Raj
24
128: (1986) 1 HLR 620: 1986 Raj LR 441]
respectively on Section 13B.
35. In paragraphs 13 and 14 of the Sureshta
Devi (supra), the learned Judges gave an
interpretation to Section 13B (2) and in
doing so the learned Judges made it clear
that the reasons given by the High Court
of Bombay and Delhi are untenable inasmuch
as both the High Courts held that once the
consent is given by the parties at the
time of filing the petition, it is
impossible for them to withdraw the same
to nullify the petition.
36. We also find that the interpretation given
by Delhi and Bombay High Courts is
contrary to the very wording of Section
13B (2) which recognizes the possibility
of withdrawing the petition filed on
consent during the time when such petition
has to be kept pending.
25
37. In paragraph 13 of Sureshta Devi (supra),
the learned Judges made the position clear
by holding as follows:
“At the time of the petition by
mutual consent, the parties are not
unaware that their petition does not by
itself snap marital ties. They know that
they have to take a further step to snap
marital ties. Sub-Section (2) of Section
13-B is clear on this point. It provides
that “on the motion of both the parties,….
if the petition is not withdrawn in the
meantime, the court shall….pass a decree
of divorce…”. What is significant in this
provision is that there should also be
mutual consent when they move the court
with a request to pass a decree of
divorce. Secondly, the court shall be
satisfied about the bona fides and the
consent of the parties. If there is no
mutual consent at the time of the enquiry,
the court gets no jurisdiction to make a
decree for divorce. If the view is
otherwise, the court could make an enquiry
and pass a divorce decree even at the
instance of one of the parties and against
the consent of the other. Such a decree
cannot be regarded as decree by mutual
consent.”
38. Therefore, it was made clear in Sureshta
Devi (supra) that under Section 13B (2),
the requirement is the ‘motion of both the
26
parties’ and interpreting the same, the
learned Judges made it clear that there
should be mutual consent when they move
the Court with a request to pass a decree
of divorce and there should be consent
also at the time when the Court is called
upon to make an enquiry, if the petition
is not withdrawn and then pass the final
decree.
39. Interpreting the said Section, it was held
in Sureshta Devi (supra) that if the
petition is not withdrawn in the meantime,
the Court, at the time of making the
enquiry, does not have any jurisdiction to
pass a decree, unless there is mutual
consent.
40. Learned Judges made it further clear that
if the Court makes an enquiry and passes a
divorce decree even at the instance of one
of the parties and against the consent of
27
the other, such a decree cannot be
regarded as a decree by mutual consent.
41. In paragraph 14 of the said judgment,
learned Judges made it further clear as
follows:-
“If the Court is held to have the
power to make a decree solely based on the
initial petition, it negates the whole
idea of mutuality and consent for divorce.
Mutual consent to the divorce is a sine
qua non for passing a decree for divorce
under Section 13-B. Mutual consent should
continue till the divorce decree is
passed. It is a positive requirement for
the court to pass a decree of divorce.
“The consent must continue to decree nisi
and must be valid subsisting consent when
the case is heard.” {See (i) Halsbury’s
th
Laws of England, 4 edn. Vol. 13 para 645;
th
(ii) Rayden on Divorce, 12 edn., Vol. 1,
P. 291; and (iii) Beales V. Beales}.”
42. In paragraph 15 of the judgment, this
Court held that the decisions of the High
Courts of Bombay, Delhi and Madhya Pradesh
cannot be said to have laid down the law
correctly and those judgments were
overruled. We also hold accordingly.
28
43. The decision in Sureshta Devi (supra) was
rendered by a Bench of two learned Judges
of this Court. In a subsequent decision of
two learned Judges of this Court in the
case of Ashok Hurra Vs. Rupa Bipin Zaveri
– (1997) 4 SCC 226, the judgment in
Sureshta Devi (supra) was doubted as
according to the learned Judges some of
the observations in Sureshta Devi (supra)
appear to be too wide and require
reconsideration in an appropriate case.
44. Learned Judges in Ashok Hurra (supra) made
it clear that they were passing the order
in that case on the peculiar fact
situation. This Court also held that in
exercise of its jurisdiction under Article
142 of the Constitution, a decree of
divorce by mutual consent under Section
13B of the Act was granted between the
29
parties. (See paragraph 16 and 22 of the
report).
45. It appears that those observations were
made by the learned Judges without
considering the provisions of the Family
Courts Act. In any event, the decision in
Ashok Hurra (supra) was considered by a
larger Bench of this Court in Rupa Ashok
Hurra Vs. Ashok Hurra and Anr. – (2002) 4
SCC 388. No doubt was expressed by the
larger Bench on the principles laid down
in Sureshta Devi (supra). It appears that
a petition for review was filed against
the two judge decision in Ashok Hurra
(supra) and the same was dismissed.
Thereafter, the question before the
Constitution Bench in Rupa Ashok Hurra
(supra) was as follows:-
“Whether the judgment of this Court
dated 10.3.1997 in Civil Appeal No.1843 of
1997 [1997 (4) SCC 226] can be regarded as
a nullity and whether a writ petition
under Article 32 of the Constitution can
30
be maintained to question the validity of
a judgment of this Court after the
petition for review of the said judgment
has been dismissed are, in our opinion,
questions which need to be considered by a
Constitution Bench of this Court.”
46. In the Constitution Bench decision of this
Court in Rupa Ashok Hurra (supra), this
Court did not express any view contrary to
the views of this Court in Sureshta Devi
(supra).
47.
We endorse the views taken by this Court
in Sureshta Devi (supra) as we find that
on a proper construction of the provision
in Section 13B (1) and 13B (2), there is
no scope of doubting the views taken in
Shreshta Devi (supra). In fact the
decision which was rendered by the two
learned Judges of this Court in Ashok
Hurra (supra) has to be treated to be one
rendered in the facts of that case and it
is also clear by the observations of the
learned Judges in that case.
31
48. None of the counsel for the parties argued
for reconsideration of the ratio in
Sureshta Devi (supra).
49. We are of the view that it is only on the
continued mutual consent of the parties
that decree for divorce under Section 13B
of the said Act can be passed by the
Court. If petition for divorce is not
formally withdrawn and is kept pending
then on the date when the Court grants the
decree, the Court has a statutory
obligation to hear the parties to
ascertain their consent. From the absence
of one of the parties for two to three
days, the Court cannot presume his/her
consent as has been done by the learned
Family Court Judge in the instant case and
especially in its facts situation,
discussed above.
50. In our view it is only the mutual consent
of the parties which gives the Court the
32
jurisdiction to pass a decree for divorce
under Section 13B. So in cases under
Section 13B, mutual consent of the parties
is a jurisdictional fact. The Court while
passing its decree under Section 13B would
be slow and circumspect before it can
infer the existence of such jurisdictional
fact. The Court has to be satisfied about
the existence of mutual consent between
the parties on some tangible materials
which demonstrably disclose such consent.
In the facts of the case, the impugned
decree was passed within about three weeks
from the expiry of the mandatory period of
six months without actually ascertaining
the consent of the husband, the respondent
herein.
51. It is nobody’s case that a long period has
elapsed between the expiry of period of
six months and the date of final decree.
33
52. For the reasons aforesaid, we affirm the
view taken by the learned Judges of the
Bombay High Court in the order under
appeal.
53. The appeal is disposed of as follows:-
(i) On receipt of the copy of this
judgment, the Family Court is
directed to issue notice to both the
parties to appear in the Court on a
particular day for taking further
steps in the case.
(ii) On that day, the parties are at
liberty to engage their own counsel
and they may be personally present
before the Court and inform the Court
as to whether they have consent to
the passing of the decree under
Section 13B of the Act. If both the
parties give their consent for
passing of the decree under Section
34
13B, the Court may pass appropriate
orders.
(iii) If any of the parties makes a
representation that he/she does not
have consent to the passing of the
decree, the Court may dispose of the
proceedings in the light of the
observations made by us.
There shall be no order as to costs.
...................C.J.I.
(K.G. BALAKRISHNAN)
.......................J.
(P. SATHASIVAM)
.......................J.
New Delhi (ASOK KUMAR GANGULY)
May 11, 2009
35