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Sec. 13-B of hindu marriage act

(Querist) 26 September 2009 This query is : Resolved 
Both the parties to marriage filed petition u/s 13-B. and a date after 6 months fixed for reconsiliation but on that day if one party never comes before the court ... can the court passed decree of divorce with consideration that the consent given at the time of filing of the petition is still continuing becasue that party never withdrew his/her consent.
Sarvesh Kumar Sharma Advocate (Expert) 26 September 2009
Goyal ji,
no ,never.
the court's view is always mantain conjugal right not give divorce.
if parties not come then court can dsimiss in difault the case or give another but never give decree.
Raj Kumar Makkad (Expert) 26 September 2009
No. If any party to the petition has not appeared after given time of 6 months before Family Court for making his statement in favour of its earlier statement, the court cannot pass the decree of divorce. You can not treat as if initial statement has not been withdrawn rather it shall be taken as finally one of the party is not agree to seek mutual divorce. The party present can file another petition and can take its benefit.
n.k.sarin (Expert) 26 September 2009
I agree with Mr. Makkad.
Kiran Kumar (Expert) 26 September 2009
the answer is NO, as the other Ld. lawyers suggested.

"court can not presume consent by mere absence of husband".....as the SC says.

u can have reference to a latest FULL BENCH judgment of Hon'ble SC, titled as

Smruti Pahariya v/s Sanjay Paharia

Civil Appeal No. 3465 of 2009 decided on 11/05/2009

reported as 2009(4) Law Herald (SC) 2281 {pls check for parallel citations}

u may check the same from www.supremecourtofindia.nic.in
Sachin Bhatia (Expert) 26 September 2009
No the court did not pass such order if one party did not apper before the court on the fixed date.
Sachin Bhatia (Expert) 26 September 2009
No the court did not pass such order if one party did not apper before the court on the fixed date.

Bhushan V. Kale (Expert) 26 September 2009
I agree with Mr. Makkad sir. on the date after passing 6 months, the parties have to sworn affidavit in support of the petition. Court may adjorn the matter.
Sachin Bhatia (Expert) 26 September 2009
See one of the Judgement sent by Mr. Kiran in the Forum section.
Adinath@Avinash Patil (Expert) 26 September 2009
mr kiran is right
Bhumik Dave (Expert) 27 September 2009
Well advise by Mr. Kiran
adv. rajeev ( rajoo ) (Expert) 27 September 2009
13(B) of The Hindu Marriage Act is Divorce by mutual consent. One of the parties is absent it amounts that one of the parties is not ready for the mutual consent.
It is clear that on the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in su/-sc1 and not later than 18 months after the 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 soemnized and that the averments in the petition are true, pass a decree of divorce delcaring the marriage to be dissoved with effectfrom the date of decree.
So both the parties are necessary, in absence of one party petittion cannot be decided.
adv. rajeev ( rajoo ) (Expert) 27 September 2009
13(B) of The Hindu Marriage Act is Divorce by mutual consent. One of the parties is absent it amounts that one of the parties is not ready for the mutual consent.
It is clear that on the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in su/-sc1 and not later than 18 months after the 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 soemnized and that the averments in the petition are true, pass a decree of divorce delcaring the marriage to be dissoved with effectfrom the date of decree.
So both the parties are necessary, in absence of one party petittion cannot be decided.
Sukhija (Expert) 28 September 2009
u have one year in hand to get other party to court for consent, 18 months after filing petition, get adjournment and do needful to secure his presence otherwise the court can assume that other party is not ready for divorce now.


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