Rajubhai Parshottambhai Parmar and ors. Vs. State of Gujarat. - Court Judgment

Excerpt:
[d. k. jain ; h. l. dattu, jj.] - hindu marriage act, 1955 - section 13b - divorce by mutual consent -- subsequently, in 2001, the parties filed a petition under section 13b of the act before the district court, gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. (b) whether the court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 13b. divorce by mutual consent. 6) admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. on the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this court held if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". secondly, the court shall be satisfied about the bona fides and the consent of the parties. if there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. on 9-1-1985, the husband and wife together moved a petition under section 13-b of the act for divorce by mutual consent. the court recorded statements of the parties. in appeal, the high court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the court to dissolve the marriage by mutual consent, if the consent was otherwise free. the issue that came up for consideration before this court was, whether a party to a petition for divorce by mutual consent under section 13-b of the act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. if petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. in our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under section 13-b. so in cases under section 13-b, mutual consent of the parties is a jurisdictional fact. the court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent." the petition is not withdrawn by either party at any time before passing the decree; the most important requirement for a grant of a divorce by mutual consent is free consent of both the parties.1. rule. mr.h.l. jani, learned additional public prosecutor, waives service of rule on behalf of the respondent-state.2. heard mr.tejas barot, learned counsel for the applicants and mr.h.l. jani, learned additional public prosecutor for the respondent-state.3. today this court has admitted the appeal filed by the applicants-original accused against the judgment and order of conviction and sentence dated 30^th december 2010 passed by the learned special judge, anand, in special (s.c. / s.t.) case no.27 of 2009. the applicants-accused are on bail at present. amount of fine is already paid by the applicants-accused. the learned judge by his judgment and order dated 30^th december 2010 convicted the applicants under section 323 and 114 of the indian penal code and ordered to undergo six months simple imprisonment and also imposed fine of rs.500/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of 15 days. the learned judge has also convicted the applicant no.3 under section 3(1)(10) of the scheduled castes and scheduled tribes (prevention of atrocities) act and ordered to undergo simple imprisonment for a period of one year and also imposed fine of rs.500/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of 15 days.4. in view of above facts and circumstances of the case emerging from the record and in view of the fact that the applicants are on bail at present and the applicants have paid the amount of fine, present application is hereby allowed. the substantive sentence is hereby placed under suspension pending hearing and disposal of the main appeal and the applicant-original accused are hereby ordered to be released on bail.5. looking to the facts of the case, i am of the opinion that this is a fit case to suspend the sentence awarded to the applicants. hence, the present application is hereby allowed. the substantive sentence is hereby placed under suspension pending hearing and disposal of the main appeal and the applicants-original accused are hereby ordered to be released on bail on their furnishing surety of rs.10,000/- each and a personal bond of the like amount on usual terms and conditions. rule is made absolute to the aforesaid extent. direct service is permitted.

Judgment:
1. Rule. Mr.H.L. Jani, learned Additional Public Prosecutor, waives service of Rule on behalf of the respondent-State.

2. Heard Mr.Tejas Barot, learned counsel for the applicants and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent-State.

3. Today this Court has admitted the appeal filed by the applicants-original accused against the judgment and order of conviction and sentence dated 30^th December 2010 passed by the learned Special Judge, Anand, in Special (S.C. / S.T.) Case No.27 of 2009. The applicants-accused are on bail at present. Amount of fine is already paid by the applicants-accused. The learned Judge by his judgment and order dated 30^th December 2010 convicted the applicants under Section 323 and 114 of the Indian Penal Code and ordered to undergo six months simple imprisonment and also imposed fine of Rs.500/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of 15 days. The learned Judge has also convicted the applicant No.3 under Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and ordered to undergo simple imprisonment for a period of one year and also imposed fine of Rs.500/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of 15 days.

4. In view of above facts and circumstances of the case emerging from the record and in view of the fact that the applicants are on bail at present and the applicants have paid the amount of fine, present application is hereby allowed. The substantive sentence is hereby placed under suspension pending hearing and disposal of the main appeal and the applicant-original accused are hereby ordered to be released on bail.

5. Looking to the facts of the case, I am of the opinion that this is a fit case to suspend the sentence awarded to the applicants. Hence, the present application is hereby allowed. The substantive sentence is hereby placed under suspension pending hearing and disposal of the main appeal and the applicants-original accused are hereby ordered to be released on bail on their furnishing surety of Rs.10,000/- each and a personal bond of the like amount on usual terms and conditions. Rule is made absolute to the aforesaid extent. Direct Service is permitted.