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Anil Kumar Jain v. Smt. Maya Jain

Anil Kumar Jain
Smt. Maya Jain

(High Court Of Madhya Pradesh)

First Appeal No. 323/2005 | 21-03-2007

A.K. Shrivastava, J.

This appeal has been preferred under Section 28 of Hindu Marriage Act by Appellant/husband.

In the trial Court a joint application under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') was filed on 4/9/2005 mentioning in it that the marriage between them was solemnize on 22/6/ 1985. It has been further stated in the application that they have two sons from their wedlock aged about 16 year and 13 year respectively. It has been further stated in the application that on account of serious differences arose between them, it is not possible to live together as husband and wife and they are also residing separately for last two years.

On going through the application, it is further gathered that husband has given the entire business of 'Gaurav Lodge' to the wife Smt. Maya Jain so that she may maintain herself. The Appellant/husband has also abandoned his right from the business of the said lodge and an agreement in that regard has been separately executed on 4/9/2004.

It was further agreed between the parties in the application that wife Smt. Maya Jain would not claim any Stridhan or any amount of maintenance in future. Thus, a joint prayer was made in the application that the marriage which was solemnized on 22/6/1985 be dissolved and a decree of divorce by mutual consent be passed.

On this application both these parties put their signatures and joint application was filed by both of them.

The learned trial Court on receiving such application directed the parties to consider their prayer made in the application and fixed the matter after six months in terms of Sub-section (2) of Section 13-B of the Act. The said order was passed on 4/9/2004.

After expiry of six months on 7/3/2005 the case was taken up for hearing and the wife expressed that though it is impossible to live with her husband and she is living separately from her husband but she does not want the decree of divorce. The trial Court on the basis of the statement made by wife dismissed the said application.

Hence, in this manner, the present appeal has been filed.

This Court on 21/2/2007 directed the parties to remain present for reconciliation. Eventually, on 12/3/2007 the parties appeared in the Court and this Court passed the following order:

Parties to the appeal are present in terms of the order passed by this Court on 21/2/2007. However, the wife/Respondent Smt. Maya Jain who has been identified by her counsel Shri Rajesh Sen, submits that though she wants to live separately from the Appellant but she does not want to have a decree of dissolution of Marriage.

Shri Avinash Zargar, learned Counsel submits that he wants to address the Court. List in next week.

The consistence statement of wife is that she does not want to live with the husband/Appellant and want to live separately. On going through the application filed in the trial Court under Section 13-B of the Act, it is gathered that the parties are living separately more than two year and it is not possible for them to live together. The trial Court gave six months' time to the parties and ultimately 7/3/2005 when the wife stated that she does not want the decree of divorce though she wants to live separately from Appellant, since it is not possible to live with him, the application has been dismissed.

The Supreme Court in the similar facts and circumstances in the case of Ashok Hurra v. Rupa Bipin Zaveri, : (1997) 4 SCC 226, passed the decree of divorce but the said power was exercised under Article 142 of the Constitution of India which this Court is not enjoying. Since there is no application of husband to obtain divorce on any of the ground envisaged under Section 13 of the Act and looking to the peculiar facts and circumstances that the consent should continue till the divorce decree is passed, I am of the view that decree of divorce by mutual consent under Section 13-B of the Act cannot be passed. However, the Appellant shall be free to file petition of divorce in accordance with law which shall be decided according to its own merit by keeping in mind the peculiar facts and circumstances of the case that the parties are living separately for near about five years and wife is still adamant to live separately from her husband/Appellant.

This appeal is, accordingly, dismissed and disposed of. However, looking to the facts and circumstances, parties are directed to bear their own costs.

Advocates List

For Petitioner : Mr. Avinash Zargar, AdvocateFor Respondent : Mr. Vijay Nayak, Advocate

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

A.K.Shrivastava J.

Eq Citation

2008 (2) MPJR 89