A.V.G.V. Ramu vs A.S.R. Bharathi

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)

JUDGMENT

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

Signature Not Verified of 2016 whereby the High Court dismissed the Digitally signed by ASHA SUNDRIYAL Date: 2017.12.14 16:11:34 IST Reason: 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.

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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-P-

8) 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.

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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

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