Megha Goleccha vs Rakesh Goleccha

It is submitted by both the parties that they have arrived at a compromise for dissolution of marriage by settlement and have moved a petition before the trial Court u/s 13-B of the Hindu Marriage Act for a decree of divorce by mutual consent. The grievance of the parties before this Court is that as per the settlement arrived at between the parties, permanent alimony was paid, so the waiting period of six months, as provided u/s 13-B of the Hindu Marriage Act could have been waived and a decree of divorce may have been passed by the trial Court.

From perusal of the impugned order dated 17.05.2013, we find that there is no consideration of such a prayer by the trial Court. The appellant, if had moved before the trial Court such an application, it could have been pressed and a reasoned order could have been passed by the trial Court, but it appears that the aforesaid application was not pressed or considered and there is no order on merits of such a prayer.

Though learned counsel for the appellant has tried to argue that such an application was moved, it was not considered by the trial Court and the case has been fixed after a waiting period of six months, so the aforesaid prayer can be deemed to have been rejected, but the aforesaid contention cannot be accepted. If such an application was moved, the appellant ought to have made such a prayer before the trial Court.

The legislation has purposely provided period of six months to give time and opportunity to the parties to reflect on their move. In this transitional period, the parties or either of them may have second thought. The purpose is to provide an opportunity to the parties to re-think on their move, seek advice from relations and friends. The mutual consent should continue till the divorce decree is passed. After the expiry of the period, the Court should satisfy about bona-fide and consent of the parties. If there is no consent at the time of completion of the period, the Court gets no jurisdiction to make a decree for divorce on mutual consent. There can be unilateral withdrawal of the consent. Even if the consent was obtained by fraud, any party can agitate this and withdraw the consent. See Smt. Sureshta Devi Vs. Om Prakash,

In view of the aforesaid, the prayer of the parties could have been considered by the trial Court. The parties should raised their contention before the trial Court.

Needless to say that the trial Court on raising such contentions shall consider the aforesaid prayer, in accordance with law.

With the aforesaid directions, this appeal is finally disposed of at admission stage, with no order as to costs. C.c. as per rules.