1. This revision is directed against an order dated 13-3-1989 passed by the Subordinate Judge, Athagarh in Misc. Case No. 70/88 arising out of O.S No. 5 of 1988.

2. O.S No. 5 of 1988 is a matrimonial suit in which the husband prayed for a decree of divorce against his wife. By his judgment dated 19-8-1988 the Subordinate Judge allowed the suit on contest and passed a decree for divorce as prayed for in the suit. The present petitioner later on filed an application praying to review and recall the judgment dated 19-8-1988 passed in the said suit alleging that the decree for divorce has been obtained fraudulently. It was stated in the said application that she was although living with her husband and her thumb impression was taken on a plain paper which was later on manipulated to show that she had given her consent for the decree for divorce. She had also given her statement in court to the effect that she has agreed for a decree of divorce to be passed, but now explains the same by stating that she was pressurised to make such a statement as she was given to understand that the proceeding would be dropped thereafter. She has also said that the petition appears to have been disposed on consent of both parties which on the face of it is not in accordance with law inasmuch as the provisions of S. 13-B of the Hindu Marriage Act, 1955 (hereinafter called the ‘Act’) have not been complied with. The said application was contested. The opposite party asserted that the written statement in the original case was filed by her (petitioner) with her free consent and she having admitted the allegations made in the application in the written statement as well as in her statement in court, the court was justified in recording her consent which cannot be the subject matter of review. The Subordinate Judge after hearing both parties has passed the impugned order rejecting the application for review on the ground that the grievance of the petitioner could be remedied by challenging the same in the appellate court, but the court which passed the decree has no jurisdiction being functus officio after the decree was passed.

3. From the records of the court below I find that the application though not styled as one under Section 13-B of the Act, an attempt was made to give it a colour as if it was an application under that provision. The essential allegation against her was that she had illicit connection with one Laxman Sahoo of village Bahali. But curiously enough the said Laxman Sahoo was not impleaded as a party as required under Rule 5 of Hindu Marriage and Divorce Rules, 1956. Paragraphs 7 and 8 of the application read as follows:—

“Para-7: That she (meaning the present petitioner) endorsed her consent and thus both the petitioner and respondent mutually agreed for the dissolution of marriage.

Para-8: That with her consent in writing this petition for divorce is presented in court.”

The petition did not contain any endorsement of consent of the present petitioner in writing. Thus it cannot be accepted as an application under Section 13-B of the Act. But a separate application has been filed by the present petitioner on the same day stating that while she was living with her parents after deserting her husband for more than three years she had illicit intercourse with one Laxman Sahoo of village Bahali and after coming to the house of the petitioner (meaning the husband) on 5-5-1988, her illicit pregnancy was detected and she was taken to the doctor to be examined and it was found that she had conceived since 4½ months. Thereafter she gave her consent for divorce in the interest of both parties. It was also prayed therein that let a decree for divorce be passed.

4. The application being presented in court on 30-6-88, the court admitted the application and directed issue of notice to the opposite party fixing 7-7-88 for appearance. On the same day the court passed a further order when the petition said to have been filed on behalf of the present petitioner was brought to the notice of the court and the matter was reposted the same day to which it was posted earlier. On the adjourned date the court fixed up 14-7-88 for making an effort for reconciliation between the parties. The order-sheet dated 21-7-88 indicates that effort for reconciliation was made, but it failed. Then the court posted the matter to 4-3-88 for hearing after settling the issues. On that day the petitioner and opposite parties before him got themselves examined in court and on the basis of their statements a decree for divorce was passed.

5. The question that arises for consideration is as to whether the application filed by the present opposite party in the court below was one under S. 13-B of the Act. Learned counsel appearing for the opposite party submits that though the application filed was not one under S. 13-B, but the same, if read along with the application filed by the present petitioner on 30-6-88 referred to above, can be construed to be one under S. 13-B. Section 13-B itself prescribes that once an application under the said section is filed, the court shall on being moved by both parties not earlier than six months after the presentation of that petition and not later than 18 months after the said date, pass a decree of divorce on being satisfied after hearing both parties and after making such enquiry as it thinks proper that the marriage had been duly solemnized and that the averments in the petition are true. Section 13-B does not require any of the grounds mentioned in S. 13 to be proved in order to entitle a party to obtain a decree for divorce. All it requires is that a petition for dissolution of marriage by a decree of divorce may be presented by both the parties 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. In this case the petition, if taken to be one under Section 131B of the Act, having been presented on 30-6-88 could not be taken up for disposal earlier than six months after its date of presentation. In other words the date on which it was taken up for hearing namely, on 4-8-88, it had not matured for hearing or disposal as per the provisions contained in sub-section (2) of Section 13-B.

6. Assuming that it was not an application under Section 13-B of the Act, but one under Section 13 of the Act, the law requires that it should be any one or more of the grounds enumerated under Section 13 of the Act which should be alleged and proved like any other fact. Section 13 of the Act further requires that where the ground taken in the petition for divorce is that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, it must be also proved that the applicant has not in any manner been accessory to or connived at or condoned the act or acts complained of. It further requires that the court must be satisfied, when a divorce is sought on the ground of mutual consent, that such consent has not been obtained by force, fraud or under influence. Law requires that in any proceeding under this Act whether defended or not the court is required to be satisfied on the above points.

7. Learned counsel appearing for the opposite party has contended that the application having not been contested, the court could pass a decree without making any enquiry as to the correctness of the allegations made in the application. As already stated, the Statute itself requires that the court must be satisfied about the absence of any connivance or condonation of any act complained of and absence of any force, fraud or undue influence being used for obtaining consent for divorce even where the case is not defended. In other words, a duty has been cast on the court itself to be satisfied that the applicant praying for a decree of divorce has not been guilty of practising fraud, force or undue influence in order to obtain consent from the other party and that he or she has not been accessory to the alleged adultery or has not condoned the same.

8. The court in the present case did not consider any of the aforesaid circumstances and passed a decree for divorce on the basis of the statement made by the petitioner. Be it an application alleging adultery within the meaning of S. 13 of the Act, or one under S. 13-B of the Act the court has utterly failed to discharge its duties while disposing of that application. Therefore, it was a fit case for review.

9. By the impugned order, the learned court below did not entertain the application for review on its merits saying that the court became functus officio after the judgment was passed in the original case. As per the analysis made in the preceding paragraphs, I am of the view that a good case has been made out for review of the judgment inasmuch as the court has failed to exercise jurisdiction vested in it by law and has passed the decree for divorce ignoring the statutory procedure prescribed under the Act and the Rules framed thereunder. Since the counsel for both parties have argued at length on the merits of the application for review of the judgment, no useful purpose shall be served by requiring the learned trial court to reconsider the said application on merits. As already held by me, the decree for divorce was passed without any enquiry worth the name as to the allegations made by the applicant. Assuming that it was an application under Section 13-B of the Act, the same could not be disposed of before expiry of six months from the date of its presentation. Thus, it cannot be said to be a valid decree. I, therefore, set aside the same and direct the learned trial court to proceed to dispose of the original case afresh in accordance with law after giving due opportunity to the present petitioner to file her written statement, if any, and receiving evidence afresh if adduced by either of the parties.

10. The civil revision is, therefore, allowed. But in the circumstances of the case, there shall be no order as to costs.

Petition allowed.