BHASKAR BHATTACHARYA, J. - (1.) THESE two applications were heard analogously as common questions of laws are involved herein. These two applications have been filed by the parties to two different matrimonial appeals pending in this court thereby praying for granting divorce on mutual consent.
(2.) THE question that primarily arises for determination in these applications is whether in a pending appeal against the dismissal of a suit for divorce on the grounds specified in Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act), the parties to such proceedings, instead of filing a fresh application under Section 13B of the Act before the learned District Court, can file such an application and insist on passing a decree for divorce on mutual consent without waiting for six months as provided in Section 13B(2) of the Act. Mr. Tandon and Mr. Basu, the learned counsel appearing for the respective parties have made separate submissions in support of the applications contending, in substance, that this Court, in a regular appeal against dismissal of a suit for divorce filed on various grounds mentioned in Section 13 of the Act, after being satisfied with the requirements of sub-section (1) of Section 13B grant a decree for divorce on mutual consent and that the formalities prescribed in sub-section (2) of Section 13B of the Act are not mandatory and can be dispensed with.
(3.) IN order to appreciate the contentions of the learned counsel for the parties, it will be appropriate to refer to the provisions contained in Section 13B of the Act which are quoted below : " 13-B. 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, 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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." ;