Tuesday, 16 September 2014

Whether court can pass decree for divorce by mutual consent if consent of one party is not continuing?


 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consent and that the court cannot presume that the initial consent has continued because one of the spouses has not withdrawn the petition or the consent within the stipulated period, the impugned judgment which takes a contrary view must be set aside.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, 
V
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

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Whether court other than SC can pass decree for divorce by mutual consent if one spouse withdraws his or her consent?

 The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other Courts can exercise such powers. The other Courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties.

Supreme Court of India

Anil Kumar Jain vs Maya Jain on 1 September, 2009

Bench: Altamas Kabir, Cyriac Joseph
                             
Citation: AIR2010SC229, (2009)10SCC415, 2010(2)BomCR774,2009(6) ALLMR 515
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Whether court can order production of document even though application is not supported by affidavit?

 I agree with the view taken by the Himachal Pradesh High Court that ordinarily the application should be accompanied with an affidavit. In the case of National Rice and Dal Mills, Rajpur (supra) the application under Order 11, Rule 14 was dismissed by the Court of the Subordinate Judge on the ground that no affidavit has been filed with the application. The learned Subordinate Judge had the jurisdiction to reject the application on the ground that no affidavit has been filed in spite of repeated opportunities. In the instant case, such opportunity was not given to the present non-petitioner. On the contrary, no such objection was also raised in the court below. Appendix-C is a directory in nature and not mandatory. The direction should be fulfilled as far as practicable and particularly when objection is raised by the opposite party. In the absence of an objection in the lower Court the court considered it proper to issue direction for the production of the documents referred in the application. Directions so issued are not vitiated only on account of non-filing of the affidavit which was not objected to even by the present petitioner in the court below. In such circumstances, no question of jurisdiction is involved in it. The Court had the jurisdiction to issue necessary orders and the Court has rightly issued the directions for the production of the documents.

Rajasthan High Court
Ravindra Bal Niketan Samiti, ... vs Smt. Sushila Shrivastava And Anr. on 23 July, 1987
Equivalent citations: AIR 1988 Raj 177, 1988 (1) WLN 74

Bench: D Mehta

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Whether court can direct production of document even though said document is not in possession of other party?

I have considered the submissions made by Mr. Mukherjee and perused the order impugned. Admittedly those documents the production of which were sought for by the petitioner, were referred and relied upon by contesting defendant no.4 in his written statement. Admittedly, ld. trial court rejected said application praying for production of documents only on the ground that it was filed belated only after closure of evidence. Admittedly, the court has power and jurisdiction to make an order for production of documents at any time during pendency of the suit subject to fulfilling of condition namely that the documents were in possession of the party against whom the order is sought to be made and that those documents related to the matter in question in suit. In view of said settled proposition of law, I find that the ld. trial court failed to exercise jurisdiction so vested to him in law by passing the order impugned. Accordingly, this revisional application is hereby allowed exparte by setting aside the order impugned dated 3rd February, 2010 passed in T.S. No.27 of 1999.
Kolkata High Court (Appellete Side)
In Air 1972 Calcutta 308 (India ... vs The 5Th Industrial Tribunal on 13 November, 2013
Author: Tarun Kumar Gupta

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