Assuming that it was not an application under Section 13-B of the Act, but one under Section 13 of the Act, the law requires that it should be any one or more of the grounds enumerated under Section 13 of the Act which should be alleged and proved like any other fact. Section 13 of the Act further requires that where the ground taken in the petition for divorce is that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, it must be also proved that the applicant has not in any manner been accessory to or connived at or condoned the act or acts complained of. It further requires that the court must be satisfied, when a divorce is sought on the ground of mutual consent, that such consent has not been obtained by force, fraud or under influence. Law requires that in any proceeding under this Act whether defended or riot the court is required to be satisfied on the above points.
7. Learned counsel appearing for the opposite party has contended that the application having not been contested, the court could pass a decree without making any enquiry as to the correctness of the allegations made in the application. As already stated, the Statute itself requires that the court must be satisfied about the absence of any connivance or condonation of any act complained of and absence of any force, fraud or undue influence being used for obtaining consent for divorce even where the' case is not defended. In other words, a duty has been cast on the court itself to be satisfied that the applicant praying for a decree of divorce has not been guilty of practising fraud, force or undue influence in order to obtain consent from the other party and that he or she has not been accessory to the alleged adultery or has not condoned the same.
8. The court in the present case did not consider any of the aforesaid circumstances and passed a decree for divorce on the basis of the statement made by the petitioner. Be it an application alleging adultery within the meaning of Section 13 of the Act, or one under Section 13-B of the Act the court has utterly failed to discharge its duties while disposing of that: application. Therefore, it was a fit case for' review.
9. By the impugned order, the learned court below did not entertain the application for review on its merits saying that the court became functus officio after the judgment was passed in the original case. As per the analysis made in the preceding paragraphs, I am of the view that a good case has been made out for review of the judgment inasmuch as the court has failed to exercise jurisdiction vested in it by law and has passed the decree for divorce ignoring the statutory procedure prescribed under the Act and the Rules framed there-under.
IN THE HIGH COURT OF ORISSA
Civil Revision No. 446 of 1989
Decided On: 29.03.1991
Smt. Kanchan Mohanty
Vs.
Kulamani Mohanty
Vs.
Kulamani Mohanty
Hon'ble Judges/Coram:
Purna Chandra Mishra, J.
Purna Chandra Mishra, J.
Citation: AIR 1992 Orissa 165
