petition for consent divorce – one of the party not turned up – family court dismissed – High court too dismissed – apex court held that First, the parties have admittedly entered into an Agreement/MOU dated 30.12.2014 (Annexure-P8) agreeing therein to get their marriage dissolved by obtaining decree from the Court. Second, the Agreement/MOU bears the signatures of the appellant and respondent. Third, respondent never denied her signature on the Agreement/MOU nor its execution and nor its contents. Fourth, both the parties pursuant to Agreement/MOU actually filed an application under Section 13-B of the Act seeking dissolution of their marriage duly signed. Fifth, the respondent never stated before the Family 5 Court during the cooling period of six months that she wants to wriggle out of the application and does not wish to give her consent for mutual divorce. Sixth, the respondent also did not appear in person before the High Court and nor filed any affidavit except to say through her lawyer. Seventh, parties have been living separately for the last four years due to which their marriage has become irretrievable and there is no point in keeping such marriage alive because when asked the appellant whether he is prepared to continue with the marriage and would like to live with the respondent, his lawyer declined. Lastly, despite service of the notice of this appeal, the respondent too has also not appeared in this Court on any of the dates of hearing and nor sent any letter/affidavit/application or written request of any kind so as to know her stand in the appeal. This shows that the respondent is also not interested in 6 keeping the marital relations alive with the appellant. It is for all these reasons, the appeal succeeds and is allowed. Impugned judgment is set aside. As a consequence, the joint petition (O.P. No.9 of 2015) filed by the appellant and the respondent under Section 13-B of the Act in the Family Court (City Civil Court) at Hyderabad is allowed.The marriage between the appellant and the respondent performed on 11.08.2013 is accordingly dissolved by decree of divorce.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 22913 OF 2017
(ARISING OUT OF SLP (C) No.31476/2016)
A.V.G.V. Ramu …Appellant(s)

VERSUS
A.S.R. Bharathi ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed by the husband against the
final judgment and order dated 29.08.2016 passed
by the Division Bench of the High Court of
Judicature at Hyderabad for the State of Telangana
and the State of Andhra Pradesh in F.C.A. No. 131
of 2016 whereby the High Court dismissed the
appeal filed by the appellant herein against the
1
order dated 14.09.2015 passed by the Family Court,
Hyderabad in O.P. No.9 of 2015 dismissing the
petition filed by both the parties for mutual divorce
under Section 13-B of the Hindu Marriage Act, 1955
(hereinafter referred to as “the Act”).
3. Facts of the case lie in a narrow compass so
also the issue involved in the appeal is very short. It
would be clear from the narration of the facts infra.
4. The appellant is the husband whereas the
respondent is the wife. Both have married second
time. The husband has one daughter aged around 7
years from his first marriage whereas the
respondent has no issue from the first marriage or
the second one. The marriage in question took place
on 11.08.2013.
5. Unfortunately, the second marriage also did
not go well. The appellant and the respondent had
several differences soon after the marriage, which
2
eventually resulted in their living separately which
continued till date.
6. On 30.12.2014, the appellant and the
respondent with a view to end all disputes and their
marriage entered into an Agreement/MOU
(Annexure-P-8) for dissolution of their marriage with
consent and agreed to make an application under
Section 13-B of the Act.
7. Pursuant thereto both, the appellant and
respondent, filed an application under Section 13-B
of the Act before the Family Court at Hyderabad on
31.12.2014 being O.P.No. 9/2015. Thereafter the
case was adjourned for 06.07.2015, 07.07.2015 and
12.09.2015. The respondent, however, did not
appear on any of these dates. The Family Judge,
however, on 14.09.2015 took up the case on expiry
of six months’ cooling period and finding that the
respondent did not appear in the proceedings
dismissed the application.
3
8. The appellant felt aggrieved and filed appeal
under Section 28 of the Act in the High Court of
Andhra Pradesh out of which this appeal arises. In
the said appeal, learned counsel appearing for the
respondent (wife) stated that her client (wife) does
not give consent for dissolution of marriage. The
High Court, therefore, dismissed the appeal by
impugned judgment, which has given rise to filing of
this appeal by way of special leave in this Court by
the husband.
9. Notice of this appeal was sent to the
respondent. Despite service, no one appeared for the
respondent on any of the dates of hearing of this
appeal.
10. Having heard the learned counsel for the
appellant and on perusal of the record of the case,
we are of the considered opinion to allow the appeal
and while setting aside of the judgment/order of the
Family Court and the High Court allow the
4
application made by the appellant and the
respondent under Section 13-B of the Act and
dissolve their marriage in terms of the
Agreement/MOU dated 30.12.2014. This we prefer
to do with the aid of our powers under Article 142 of
the Constitution and also for the reasons given
below.
11. First, the parties have admittedly entered into
an Agreement/MOU dated 30.12.2014 (Annexure-P8)
agreeing therein to get their marriage dissolved by
obtaining decree from the Court. Second, the
Agreement/MOU bears the signatures of the
appellant and respondent. Third, respondent never
denied her signature on the Agreement/MOU nor its
execution and nor its contents. Fourth, both the
parties pursuant to Agreement/MOU actually filed
an application under Section 13-B of the Act
seeking dissolution of their marriage duly signed.
Fifth, the respondent never stated before the Family
5
Court during the cooling period of six months that
she wants to wriggle out of the application and does
not wish to give her consent for mutual divorce.
Sixth, the respondent also did not appear in person
before the High Court and nor filed any affidavit
except to say through her lawyer. Seventh, parties
have been living separately for the last four years
due to which their marriage has become
irretrievable and there is no point in keeping such
marriage alive because when asked the appellant
whether he is prepared to continue with the
marriage and would like to live with the respondent,
his lawyer declined. Lastly, despite service of the
notice of this appeal, the respondent too has also
not appeared in this Court on any of the dates of
hearing and nor sent any
letter/affidavit/application or written request of any
kind so as to know her stand in the appeal. This
shows that the respondent is also not interested in
6
keeping the marital relations alive with the
appellant.
12. In a situation like the one arising in the case,
there is no reason for us to doubt the genuineness
of the Agreement/MOU and its contents. Keeping in
view the conduct of the respondent and further in
the light of eight reasons set out above, we find this
case to be fit one where we invoke our powers under
Article 142 for passing a decree for dissolution of
marriage between the parties in terms of the joint
petition dated 30.12.2014 (Annexure -P-8).
13. It is for all these reasons, the appeal succeeds
and is allowed. Impugned judgment is set aside. As
a consequence, the joint petition (O.P. No.9 of 2015)
filed by the appellant and the respondent under
Section 13-B of the Act in the Family Court (City
Civil Court) at Hyderabad is allowed.
7
14. The marriage between the appellant and the
respondent performed on 11.08.2013 is accordingly
dissolved by decree of divorce.

 

……………………………………..J.
[R.K. AGRAWAL]

……………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;
December 14, 2017
8