Divorce by mutual consent when wife has withdrawn her consen

The averments in affidavit dated 25/4/2012 that she does not

want divorce is merely an eye wash & not bonafide. The consent for

obtaining divorce decree by mutual consent was free and without any

force, fraud or undue influence by the appellant husband or his family

members. The compromise dated 3/1/2007 was genuine and voluntary

by both the parties and same has been acted upon and, therefore, both

the parties are bound by the same and appellant husband has already

paid the permanent alimony of Rs. 5 lacs to the respondent wife in

discharge of his obligation under the compromise against the dowry

articles, jewelery of respondent wife and her `Istridhan' and also for

future maintenance of herself and their son Siddharth. The petition

under Section 13B of the Act satisfies the criteria provided in the Act

and this Court is satisfied that the said factual position is still

continuing, namely the parties have not been able to live together and

that they have been living separately for a period of more than six

years since November 2005 and there is irretrievable break down of

the marriage.

48. The learned District Judge has erred in dismissing the petition

under Section 13B of the Act vide impugned order dated 14/7/2008 &

the court below could have and ought to have proceeded to pass

decree for divorce by mutual consent on 12/3/2008 itself and

therefore, the impugned judgment and decree of learned District

Judge, Bhilwara deserves to be set aside 1

Rajasthan High Court - Jodhpur

Anil Khatwani vs Smt.Nisha Khatwani on 10 May, 2012