Bench Judgment Of This Court In The ... vs Smita Lakhotia Reported In 2001 ...

on 7 January, 2015

Calcutta High Court (Appellete Side)

Bench Judgment Of This Court In The ... vs Smita Lakhotia Reported In 2001 ... on 7 January, 2015
Author: Arijit Banerjee
1

07.01.2015
Sl. 85
Ct.21
aa
C.O. 3672 of 2013

Mr. Tapas Kr. Dey

Ms. Sanchayita De
...for the petitioner

The petitioner filed Matrimonial Suit No. 121 of 2008 before

the learned Judge, Family Court, Calcutta for dissolution of his
marriage with the respondent no. 1 on the ground of, inter alia,

mental cruelty and adultery.

During the pendency of the proceeding the parties came to a settlement and agreed to obtain a
decree of divorce on mutual consent.

Accordingly, the petitioner made an application before the learned Family Court for conversion of
the divorce petition filed under Section 27 of the Special Marriage Act into an application by mutual
consent under Section 28 of the Special Marriage Act. The learned Judge essentially by relying on a
decision of the Apex Court reported in (2009) 10 SCC 415 came to a conclusion that he did not have
the power to convert the suit into a suit for mutual divorce.

Accordingly, the learned Judge dismissed the application for conversion.

I have carefully gone through the judgment of the learned Family Court and I am of the view that the
judgment and order impugned has been passed on the basis of misappreciation and wrong
understanding of the decision of the Hon'ble Apex Court relied upon by the learned Judge.

In the said case, the Hon'ble Apex Court has held that in exercise of its extra-ordinary power under
Article 142 of the Constitution of India and to do complete justice to the parties, it could pass any
order and could even abridge the cooling off statutory period of 6 months. The Supreme Court did
not say that a contested petition under Section 13 of the Hindu Marriage Act, 1955 could be
converted into a consent petition under Section 13B of the said Act only by the Supreme Court in
exercise of its power under Article 142 of the Constitution of India. The Supreme Court no where
laid down that the other courts did not have the power to convert a contested Matrimonial Suit to a
proceeding for divorce on mutual consent.

Indian Kanoon - http://indiankanoon.org/doc/148570896/ 1

 Bench Judgment Of This Court In The ... vs Smita Lakhotia Reported In 2001 ... on 7 January, 2015

The learned counsel for the petitioner has cited a Division Bench judgment of this court in the case
of Rajesh Lakhotia Vs. Smita Lakhotia reported in 2001 (1) CLJ 565 wherein at paragraph 12 of the
judgment the Division Bench has observed that having regard to the views expressed by the Hon'ble
Supreme Court in Shashi Garg's case ( (1977) 7 SCC 565 ) and other cases, there is no difficulty in
converting a contested proceeding even at the appellate stage from one under Section 13 of the
Hindu Marriage Act, 1955 to one under Section 13B of the said Act and the Division Bench directed
accordingly.

Similar view has been expressed by a Division Bench of Andhra Pradesh High Court in a case
reported in AIR 1986 AP

167. Having regard to the aforesaid, I am of the view that the learned Judge ought to have allowed
the petitioner's application for conversion. He did not do so on wrong notion that he did not have
the power to do so. In other words he declined to exercise his jurisdiction thinking that he had no
such jurisdiction when in fact, he had the jurisdiction to allow the application for conversion. This is
a material irregularity and good ground for interference by the Revisional Court. Directing the
parties to withdraw the suit and file a divorce petition on mutual consent afresh would enure to
nobody's benefit and will only delay matters apart from wasting time and money. The revision
application succeeds.

The order impugned is set aside.

The learned court below is directed to allow the conversion of the contested Matrimonial Suit to an
application under Section 28 of the Special Marriage Act and pass an appropriate order thereon.

This application is accordingly, disposed of. Urgent photostat certified copy of this order, if applied
for, be given to the learned advocates for the parties upon compliance of all requisite formalities.

( Arijit Banerjee, J. )

Indian Kanoon - http://indiankanoon.org/doc/148570896/ 2