Full Judgment Text
2008:BHC-AS:19665-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.160 OF 2008
Smt. Jatina Samir Shah nee }
Jatina Rasiklal Thakkar (Udadkat), }
}
of Bombay,
Age : 31 years }
Occ. : Architect } Appellant
R/o : C/o Rikhav Rasiklal Thakkar } (Ori. Petitioner
4-B, Champa Vihar, M.G. Road, } No.2)
Near Kala Hanuman Temple, }
Kandivli (West), }
Mumbai – 400 067 }
Vs.
Shri Samir Mohit Shah, of Bombay }
Age : 35 years, }
Occ. : Service (Engineer) } Respondent
R/o : 201, Nilkanth Apartments, } (Original
C.S. Complex, Link Road, Anand Nagar, } Petitioner
Dahisar (East), Mumbai – 400 068 } No.1)
Mr. J.J. Shah for Appellant.
.
Mr. L.C. Joshi for Respondent
Coram : P.B. MAJMUDAR &
SMT. R.P. SONDURBALDOTA, JJ.
Date : 7TH October, 2008
ORAL JUDGMENT (PER P.B. MAJMUDAR,J.)
1. 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
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and order passed by Family Court No. 6, Bandra, Mumbai
th
dated 20 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
nd
and respondent was solemnized on 2 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
th
submitted on 10 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 :-
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6.“Hence ,the marriage solemnized between the
nd
parties on 2 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
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that decree for dissolution of marriage under
Section13(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,
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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 weigtage 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
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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 v/s Rameshwari Ramesh Chandra
Daga reported in A.I.R . 2005 SUPREME COURT Page 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 v/s. M.
Chandralekha, page 485, 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
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.
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
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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.
(P.B. MAJMUDAR, J.)
(SMT. R.P. SONDURBALDOTA,J)
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