Sunday, 23 February 2020

Whether court should grant divorce by mutual consent if one party remains absent at the time of second motion?

It is thus well settled that the petition for divorce by mutual consent must be presented by both the parties and has to meet three basic requirements viz. (i) that they are living separately for a period of one year or more; (ii) they have not been able to live together and; (iii) they have mutually agreed that the marriage should be dissolved. Sub Section 2 of Section 13-B stipulates filing of motion by both the parties after six months but not later than 18 months from the date of the presentation of the petition referred to in Sub Section 1. Sub Section 2 of Section 13-B casts a statutory duty on the court to hear the parties and make such inquiry as it thinks fit as regards genuineness of the averments in the petition and existence of mutual consent between the parties. It would also be relevant to note that Section 23 (1) (bb) of the Hindu Marriage Act also mandates that when a divorce is sought on a ground of mutual consent, whether such proceedings are defended or not, the Court should be satisfied that such consent has not been obtained by force, fraud or undue influence. From the plain reading of these provisions, it is evident that the Act confers jurisdiction on the Court to pass a decree for divorce by mutual consent only on being satisfied that the consent expressed by the parties is bonafide and genuine and that the consent for divorce continues till the decree for divorce is passed.

13. In the instant case, the records reveal that the said application under Section 13-B (I) was not presented by the parties but was presented by an Advocate who was allegedly representing both the parties. The trial Court had directed both the parties to appear before the Court on 06/06/2005. The records indicate that on 03/10/2005 the appellant/husband had filed the affidavit in support of the petition. The respondent/wife - Leena Mhetre was not present before the Court. She had not signed the motion filed by the Appellant nor filed a separate motion under Sub Section 2 of Section 13-B. The learned Judge did not secure her presence and did not make any inquiry as regards genuineness of the contents of the petition and existence of her consent. The learned Trial Court has proceeded on a footing that the initial consent given by the respondent - Leena Mhetre is irrevocable. Suffice it to say that this view is not sustainable in view of the settled position of law that the consent should continue as on the date of the decree.

14. It is also pertinent to note that the Trial Court had presumed consent of the wife - Leena Mhetre merely because she had not come forward before the Court to oppose the motion filed by the petitioner-husband. Existence of consent has to be ascertained by complying with the basic requirement of Sub Section 2 of Section 13-B and cannot be presumed as it has been done by the Trial Court. Furthermore, the Court gets jurisdiction to pass a decree for divorce under Section 13-B only when the parties mutually consent for divorce. In short, mutual consent is a sine qua non for passing a decree for divorce under Section 13-B of the Act. In the instant case, the learned Trial Judge has granted divorce without complying with the basic requirements of Sub Section 2 of Section 13-B of the Act and without being satisfied about the existence of consent of the respondent - wife. The learned District Judge was therefore perfectly justified in holding that the order of divorce was without jurisdiction.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 725 of 2015, 

Decided On: 13.06.2019

 Ajit Shashikant Mhetre  Vs.  Leena Ajit Mhetre 

Hon'ble Judges/Coram:
Anuja Prabhudessai, J.

Citation: 2020(1) MHLJ 585
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Whether litigant seeking condonation of delay due to negligence of his Advocate should make him party to proceeding?

 This submission, at the first blush, appears very attractive and tends the Court to interfere with the matter. However, after hearing the learned counsel for the applicant, especially when a query was put to the learned counsel in respect of the conduct on the part of the applicant as to whether at any point of time, she on her own, contacted her advocate, the reply was in negative. A litigant who approaches to the Court must be diligent. He or she must take all steps to pursue his or her litigation. It is expected from the litigant that he or she is in contact with the lawyer who is representing his or her cause in the Court of law. A litigant cannot take a spacious plea that once the case is entrusted with an the advocate his or her work is over and the advocate will take care of the matter. An Advocate always discharges his duties on the instructions given to him by his client.

7. It is very easy for a litigant to make allegations against an advocate behind his back. If the applicant wishes to make allegations against the advocate, the applicant should have a courage to join the advocate as a party and in his presence should make allegation against him. Here, the applicant wants to condemn the advocate behind his back. In my view, it is impermissible and unacceptable. Further, no steps are also being taken by the applicant against any advocate under the provision of the Advocates Act.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Application No. 19/2018 in Second Appeal St. No. 22803/2017

Decided On: 18.06.2019

 Kanta  Vs.  Manjulabai and Ors.

Hon'ble Judges/Coram:
V.M. Deshpande, J.

Citation: 2020(1) MHLJ 918
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What is distinction between order withholding increment with cumulative effect and one withholding increment without cumulative effect?

 The difference between an order withholding increment with cumulative effect and the one withholding increment without cumulative effect has been succinctly explained by the Hon'ble Apex Court in the case of Punjab State Electricity Board, Now Punjab State Power Corporation Ltd. vs. Raj Kumar Goel, reiterating the view taken in the case of Uttam Kumar vs. Delhi Jal Board, reported in MANU/DE/0135/2001 : 2001(4) S.C.T. 136: 2001 IVAD (Delhi) 166. The Hon'ble Apex Court has held that when increment is withheld without cumulative effect, it is in the realm of minor penalty and when it is done with cumulative effect, it could be in the compartment of major penalty. It further held that in the latter case, there is permanent postponement of the increment and in the former case, the increment withholding is only for a specific period and it is required to be released after expiration of the period for which the increment is directed to be withheld. That would mean that when the increment is directed to be withheld without cumulative effect, there would be only suspension of increment for the period for which it is withheld and the moment withholding period expires, the suspension of the increment would stand removed and that increment would be payable along with the increment payable in the year in which the withholding effect disappears.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 425 and 541 of 2018

Decided On: 23.07.2019

 Nilkanth Dhyanoba Jogdande Vs.  Panjabrao Deshumukh Krishi Vidyapeeth

Hon'ble Judges/Coram:
S.B. Shukre and S.M. Modak, JJ.

Citation: 2020(1) MHLJ 897
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Whether it can be held that plaintiff was ready and willing to perform his part of contract if he fails to get sale deed executed through court?

On a detailed consideration of the evidence on record, the Courts below have come to the conclusion that the clauses in the Agreement have neither been amended nor varied. Merely because the Defendants were pursuing the application filed for permission before the L & DO, it cannot be said that the date fixed for performance of the Agreement stood extended. We agree with the findings of the Courts below that the suit ought to have been filed within three years from 31.03.1975 which was the date that was fixed by the Agreement. The submission made on behalf of the Plaintiffs that part II of Article 54 of the Schedule to the Limitation Act applies to this case and that the suit was filed within limitation as the refusal by the Defendants was only in the year 1987 is not acceptable. Moreover, the Plaintiffs have not performed their part of the Agreement within a reasonable period. As per the Agreement, the Plaintiffs were given the right to get the sale deed executed through the Court in case of failure on the part of the Defendants to execute the sale deed by 31.03.1975. The Plaintiffs filed the suit 12 years after the date fixed for performance. It is relevant to refer to the judgment of this Court in K.S. Vidyanadam v. Vairavan MANU/SC/0404/1997 : (1997) 3 SCC 1 wherein it was held as follows:

Even where time is not of the essence of the contract, the Plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property

12. The silence maintained by the Plaintiffs for about 12 years amounted to abandonment of the Agreement and we approve the finding in this regard made by the Trial Court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2525 of 2019 

Decided On: 06.03.2019

 Urvashi Aggarwal Vs.Kushagr Ansal 
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