Smt. Jyoti Jain vs Jinesh Jain

Shantanu Kemkar, J.

Heard.

Though this matter was listed for admission, Shri A.K. Jain, learned Counsel appeared for non-applicant and accepted notice on his behalf.

Learned Counsel for both the sides requested that the matter may be finally disposed of. Prayer accepted. Heard finally.

It is not disputed that the applicant Smt. Jyoti Jain had filed a petition in the year 2001 u/s 13 of the Hindu Marriage Act, 1955, hereinafter referred to as ''Act'' against the non-applicant seeking decree of divorce on the grounds mentioned u/s 13 of the Act. The petition was filed in the Court of 9th Additional District Judge, Indore. Thereafter, vide order dated 27-8-2003 passed in M.C.C. No. 692/03 by this Court the petition was transferred from the Court of 9th Additional District Judge, Indore to the Family Court, Jabalpur and the same is pending.

During the pendency of the said petition which was filed in the year 2001 the parties moved a petition u/s 13B of the Act seeking divorce by mutual consent. The Family Court, Jabalpur rejected the application holding that the application can not be considered earlier than six months after date of its presentation, even though the petition for divorce presented u/s 13 of the Act is pending since 2001.

Learned Counsel for both the parties have relied on the judgment passed by this Court in Deepak (Dr.) v. Smt. Tanuja 2003(2) MPLJ 121, in which this Court relying on the judgment of the Supreme Court and also of various High Courts has held that the Trial Court as well as the Appellate Court at any stage of the proceeding can grant a decree by mutual consent if the conditions laid down in Section 13B and Section 23 of the Act of 1955 are fulfilled and can grant a decree for divorce in a case where the dispute is pending for more than a year and parties have been living separately for a period of more than one year and they have not been able to live together and have mutually agreed that the marriage should be dissolved and the consent has not been obtained by force, fraud and undue influence.

Admittedly the petition filed by the applicant u/s 13 of the Act is pending since 2001. In view of this and the judgment passed by this Court supra, I am of the view that the Family Court had jurisdiction to decide the petition filed u/s 13B of the Act even prior to completion of six months from the date of its presentation.

Accordingly this revision is allowed. The order of the Family Court is set aside. The Family Court is directed to consider the application filed by the parties u/s 13B of the Act seeking divorce by mutual consent on its merits, as early as possible.