Judgment:
H.H. Kantharia, J.
1. The appellant is the wife of the respondent. They were married on May 4., 1980 at village called Ruvath in Gujrat according to Hindu vedic rites. The marriage was not registered. It appears that they filed M. J. Petition No. 980 of 1988 under Section 13B of the Hindu Marriage Act, 1955 as amended uptodate (hereafter referred to as the 'Hindu Marriage Act) in the City Civil Court at Bombay for divorce by mutual consent. The learned Judge of the City Civil Court, by a Roznama dated March 20, 1989, passed a decree of divorce. The appellant-wife, being aggrieved by the said judgement and decree passed by the learned Judge of the City Civil Court, filed the present appeal on the ground that a fraud was committed on her in as much as she was taken from the matrimonial house to the City Civil Court by her respondent-husband saying that they were to shift to a new house regarding which she would-be asked certain question by the Judge and she must answer in the affirmative. According to her, thus there was no consent given by her for divorce and that her consent, if any, was obtained by fraud and that she was not explained the averments made in the petition for divorce by mutual consent either by her husband or the Court staff or the Advocate or the Judge himself.
2. Mr. Naphade in support of this appeal urged that it was incumbent upon the learned trial Judge to have made inquisitor enquiry from the parties and especially the appellant-wife in consonance with Section 13B of the Hindu Marriage Act and the impugned judgement and decree passed by the learned trial Judge does not show that such an enquiry was made by the learned trial Judge and that being so, the judgement and decree was passed in violation of the mandatory provisions of law and as such then the same should be set aside. In reply, Mr. Bapat for the respondent-husband submitted that the impugned judgement passed by the learned trial Judge shows that necessary enquiry was made by the trial Court and on being satisfied that the husband and wife were living separately for more than one year and that it was not possible for them to live together that the learned trial Judge passed the impugned judgement granting divorce by mutual consent to the parties
3. Now, the impugned judgement reads as under:
'ROZNAMA
20.3.1989. Coram : His Honour Judge Shri A. H. Shah
Shri R. V. Kini, Advocate for the Petitioners.
Both the Petitioners are also present and they say that on account of differences between them they have been living separately since 7.8.87 and it has not been possible for them to live together since then and both of them want divorce by mutual consent. Both the Petitioners affirm and verify the contents of the Petition as being true to their own knowledge. I, therefore, pass decree of divorce under section 13B of Hindu Marriage Act, 1955 as amended as per prayer clause (a) of the Petition.'
This cryptic judgement passed by the learned trial Judge leaves no manner of doubt in my mind that the learned trial Judge has passed the impugned judgement without application of mind and in a casual and cavalier fashion. It is important to note that as per section 13B of the Hindu Marriage Act the Judge has to satisfy himself after making proper enquiry that the marriage has been solemnised and the averments made in the petition were true and that the parties have been living separately for a period of one year and they have not been able to live together and they have mutually agreed that the marriage should be dissolved. I am more than convinced that the learned trial Judge had not at all applied his mind as to his satisfaction of the requirement of Section 13B of the Hindu Marriage Act as the petition itself-shows in para 2 that it was the case of the appellant and the respondent that they were married at village Ruvath in Gujrat whereas in para 8 of the same petition it was averred that the marriage was solemnised in Bombay. Then there were bald and bare averments made in para 4 of the petition that there were differences between the parties of such magnitude and of such extent that they were not able to see eye to eye but the learned trial Judge does not seem to have made any enquiry as to how they were not able to live together and under what circumstances they mutually agreed that their marriage should be dissolved. The learned Judge thus appears to have passed the judgement without any application of mind and in a mechanical manner. The learned trial Judge should also have been alive to the fact that under sub-section (2) of Section 13B it was his duty to proceed with the case in order to satisfy himself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence on the appellant-wife. It was no use merely to incorporate in the judgement that both parties were present and they said that they wanted divorce by mutual consent because they were not able to live together and that they were living separately for a certain period. What is required of the Court under Section 13B(2) of the Hindu Marriage Act is to make such enquiry as the Court thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true and if the Court was satisfied that the consent of the parties was not obtained by force, fraud or undue influence and that they had mutually agreed that the marriage should be dissolved, then only the decree for divorce should be passed. The Court should also be satisfied about the bonafides and the consent of the parties. Nothing of the sort appears to have been done by the learned trial Judge in this case.
4. It is also important to bear in mind that under Section 23 of the Hindu Marriage Act, in any proceeding, whether defended or not, when a divorce was sought on the ground of mutual consent, the Court should satisfy itself that the consent has not been obtained by force, fraud or undue influence and before proceeding to grant any relief, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties for which, the Court may, if the parties so desire or if the Court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding 15 days and refer the matter to any person named by the parties in this behalf or to any person nominated by the Court if the parties failed to name any person, with directions to report to the Court as to whether reconciliation can be and has been effected and the Court shall in disposing of the proceedings have due regard to the report. The provisions of Order 32-A of the Civil Procedure Code also show that in every suit or proceedings relating to matters concerning the family, endeavour shall be made by the Court in the first instance, where it is possible to do so, consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit and if at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement and further it shall be open to the Court to secure the services of any person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purpose of assisting the Court in discharging the functions imposed on the Court by this particular Order of the Civil Procedure Code. Under Rule 5 of Order 32-A of the Civil Procedure Code, it shall be the duty of the Court to enquire, so far as it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant.
5. From the impugned judgment, I am unable to find any of the endeavours made by the learned trial Judge in the direction of the mandatory provisions of law pointed out as above. That further goes to show that the judgment was passed by the learned trial Judge in a mechanical manner. I am, therefore, not able to persuade myself to agree with the submission of Mr. Bapat that the parties had mutually agreed to dissolve their marriage and that there was enquiry made by the learned trial Judge in that t behalf.
6. In this view of the matter, the impugned judgment and decree passed by the learned trial Judge cannot be sustained in law and the same is set aside. The appeal is accordingly allowed with cost of Rs.2,000/- by the husband to the wife.
7. In view of the order allowing the appeal, no orders are necessary on Civil Applications Nos. 4456 of 1990 and 5125 of 1990. They are, therefore, disposed of with no order as to costs.