Uttaranchal High Court: Lok Pal Singh, J. dismissed a writ petition where mandamus was sought to direct the Principal Judge of Family Court to decide the matter of petitioner under Section 13-B of Hindu Marriage Act, 1955 and grant a decree of divorce based on mutual consent.
The factual matrix of the case was the petitioner and respondent both filed a joint petition in the Family Court for divorce by mutual consent. The petitioner contended that on the first date of hearing in Family Court both parties appeared and a due date after six months was fixed for the appearance. But on subsequent dates the respondent-wife was absent, hence he had no knowledge that whether the case is pending or divorce had been granted.
Learned counsel for the petitioner, Karan Anand, relied on a judgment in Suman v. Surendra Kumar, 2002 SCC OnLine Raj 111, where Rajasthan High Court decided a similar matter where the respondent was the husband and he absented himself from the Court hearing, in such case the Court had held, “This is a case of total silence on the part of the husband on the question of consent at the stage of the second motion. Should we infer the negative from silence? We are of the view that if the husband wanted to withdraw his consent he should have taken a positive stand for that purpose. There was nothing which prevented him from informing the Court that he was withdrawing his consent for decree of divorce by mutual consent. When the husband has himself left the matter for inference, the inference ought to be drawn in favor of consent rather than for absence of consent. The husband had already given his consent for the decree of divorce at the time of the first motion and he alone could withdraw the consent by a positive act, otherwise, the inference would be that the consent which was initially given continues.” Thus, the Court granted a divorce by mutual consent ex-parte.
The Court observed that case referred by the learned counsel for petitioner i.e. Suman v. Surendra, 2002 SCC OnLine Raj 111,, initially the appeal filed by the wife against the decision of the Family Court rejecting an application under Section 13-B of Act, 1955 was dismissed by the Rajasthan High Court. Subsequently, on the review application, a decree of divorce was granted on the basis of mutual consent thereby dissolving the marriage between the parties under Section 13-B of the Act, whereas, in the present case, there is no such order of the Family Court, on record, rejecting or allowing the petition under Section 13-B. Court further noted that although petitioner filed an order sheet stating that respondent was absent on several dates and in the interest of justice adjournments were made, the fact that whether the initial divorce petition is decided by the Court in any form is still a question which was not known to the Court. Based on aforementioned observations Court held that “direction sought by the petitioner is not legally maintainable as no higher court can issue a direction to a subordinate court to pass judgment or decree in favour of either of the parties.”[Rajeev Mandrawal v. Renu Mandrawal, 2019 SCC OnLine Utt 442, decided on 10-05-2019]