Uttarakhand High Court
FA/132/2009 of SMT KULDEEP KAUR @ JASVEER KAUR Vs GURNAM SINGH on 29 December 2009
COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 132 of 2009 Smt. Kuldeep Kaur alias Jasveer Kaur, W/o Gurnam Singh, D/o Late Ajit Singh, R/o Nai Basti Transit Camp P/S Rudrapur District Udham Singh Nagar …..……Appellant Versus Gurnam Singh, S/o Shri Preetam Singh, R/o
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 132 of 2009
Smt. Kuldeep Kaur alias Jasveer Kaur, W/o Gurnam Singh, D/o Late Ajit Singh, R/o Nai Basti Transit Camp P/S Rudrapur District Udham Singh Nagar
…..……Appellant
Versus
Gurnam Singh, S/o Shri Preetam Singh, R/o Village Itauva, P/S Nanakmatta, District Udham Singh Nagar
………Respondent
Mr. V.D. Bisen, Advocate, present for the appellant. Mr. M.S. Bisht, Advocate, present for the respondent.
Hon'ble Prafulla C. Pant, J.Hon’ble V.K. Bist, J.
This appeal, preferred under Section 28 of the Hindu Marriage Act, 1955, read with Section 19 of Family Courts Act, 1984, is directed against the judgment and decree dated 05.09.2009, passed by the Judge, Family Court, Udham Singh Nagar, in Divorce Petition No. 55 of 2009, whereby petition, under Section 13B of the Hindu Marriage Act, 1955, filed by the parties, is dismissed.
2. Heard learned counsel for the parties and perused the Lower Court Record.
3. Brief facts of the case are that the appellant Kuldeep Kaur alias Jasveer Kaur got married to the respondent Gurnam Singh about 11 years before filing of the suit, in accordance with Sikh rites. Two children were born out of the wedlock, namely, Sumiran (daughter) and Ranjit Singh (son). However, about four years before filing of the petition for divorce, dispute between the parties to the matrimony aggravated to the extent of assaulting each other. And, the parties to the matrimony started living separately. The appellant (wife) lives in Rudrapur (Udham Singh Nagar) with her children while the respondent started living separately in village Itauva, Police Station Nanakmatta, District Udham Singh Nagar. It is pleaded by the parties to the matrimony in their joint petition for divorce that not only they are living separately from each other for more than one year but also it has become difficult for them to live together in future.
4. Learned counsel for the appellant argued that the trial court (Judge, Family Court, Udham Singh Nagar) has committed grave error of law in rejecting the petition under Section 13B of the Hindu Marriage Act, 1955, on the ground that the parties to the matrimony are in collusion.
5. Section 13B of the Hindu Marriage Act, 1955, reads as under:- “13B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”
6. Section 20 of said Act reads as under:- “20. Contents and verification of petitions.-
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(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and, except in a petition under section 11, shall also state that there is no collusion between the petitioner and the other party to the marriage.
(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.”
Section 20 was part of the Hindu Marriage Act, 1955 from the date of commencement of this Act (i.e. May 18, 1955). Section 13B of the Act was inserted in the Act vide Act No. 68 of 1976 i.e. after 20 years of the commencement of the Act. While giving meaning to the provision contained in Section 20, which requires that there should be no collusion between the petitioner and other party to the marriage, the Court has to take a harmonious construction in interpreting the two provisions of law, quoted above. The language of Section 13B of the Act read with Section 20 makes it abundantly clear that Section 20 has no application to the petitions under Section 13B to the extent of requirement that there should be no collusion between the petitioner and the other party to the matrimony. If Section 13B is treated to be subject to condition contained in Section 20 of the aforesaid Act, no joint petition for divorce would be maintainable under Section 13B of the Act.
7. Having considered submissions of learned counsel for the parties, we are in agreement with the contention advanced on behalf of the learned counsel for the appellant that the petition for divorce under Section 13B cannot be rejected on the ground of collusion between the parties. While the petition under Section 11 of the Hindu Marriage Act, 1955, is expressly brought out of the purview of Section 20 to plead that there is no collusion between the petitioner and the other party, the language contained in Section 13B of the Act impliedly takes out the petition under said section from the clutches of condition contained in Section 20 of the Act.
8. For the reasons as discussed above, we are of the view that the trial court has erred in law in rejecting the petition filed by the parties, under Section 13B of the Act, on the ground that parties are in collusion, as said section permits that joint petition can be filed by mutual consent. The other conditions required under section 13B are already fulfilled as is apparent from the Lower Court Record.
9. Therefore, the appeal is allowed. Impugned judgment and decree dated 05.09.2009, passed by the Judge, Family Court, Udham Singh Nagar, in Divorce Petition No. 55 of 2009 is set aside. The divorce petition jointly filed by the parties under Section 13B of the Hindu Marriage Act, 1955 is allowed. Marriage between the parties stands dissolved. No order as to costs.
NS
(V.K. Bist, J.) (Prafulla C. Pant, J.) 29.12.2009