In view of our conclusion based on Sureshta Devi's case (supra), that there should be mutual consent when the parties move the court with a request to pass a decree of divorce under Section 13B(2), that motion contemplated under Section 13B is joint, that the court gets no jurisdiction to make a decree of divorce in the absence of mutual consent and that the court cannot presume that the initial consent has continued because one of the spouses has not withdrawn the petition or the consent within the stipulated period, the impugned judgment which takes a contrary view must be set aside. Learned Judge of the Family Court was clearly in error in observing that "the law must presume the consent having been given at the threshold before the court being authenticated, the same is continuing one unless otherwise proved to be contrary". Had learned Judge's attention been drawn to Sureshta Devi's case (supra), he would have perhaps not made such observations. Learned Judge's reliance on Delhi High Court's judgment in Shipra Chatterjee's case (supra) is in our opinion wholly misplaced.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.39 OF 2008
Mr. Sanjay Pahariya,
Ms. Smruti Pahariya
CORAM : SMT. RANJANA DESAI &
SMT. R.P. SONDURBALDOTA, JJ.
DATE ON WHICH THE JUDGMENT
PRONOUNCED : 5TH TH JUNE, 2008.
Citation;2008(4) ALLMR513 Bom,AIR2008Bom173, 2008(4)BomCR556, 2008(110)BOMLR1950, 2008(5)MhLj455