Whether high court and lower court can waive period of six month for seeking divorce by mutual consent?
The division bench of this court in the decision reported in
AIR 2009 Bombay 12 has referred to rationale and reasons underlying
the provisions of section 13-B of the Hindu Marriage Act, 1955
and the Supreme Court in the decision reported in (2009)10 Supreme
Court Cases 415, has ruled that the Supreme Court can in exercise
of extraordinary powers under Article 142 of the Constitution of
India convert a proceeding under section 13 of Hindu Marriage
Act, 1955 into one under section 13-B of Hindu Marriage Act,
1955 and pass decree of divorce by mutual consent without
waiting for the statutory period of six months. The Supreme
Court has also observed that neither civil courts nor even high
courts can pass orders before the period prescribed under
relevant provisions of the Act or on the grounds not provided for
under sections 13 and 13-B of the Hindu Marriage Act, 1955.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4528 OF 2015
1. Swati W/o Ramakant Patil,
2. Ramakant S/o Ratan Patil,
v
Nil
CORAM : SUNIL P. DESHMUKH, J.
DATED : 7th MAY, 2015
Citation: 2016 (5) ALLMR390
1. Rule. Rule made returnable forthwith and heard the learned
counsel for petitioners.
2. The petitioners are before this court aggrieved by order
dated 8th April, 2015 passed by learned Civil Judge, Senior
Division, Jalgaon, in Hindu Marriage Petition No. 83 of 2015,
rejecting their request to waive statutory period required under
section 13-B (2) of the Hindu Marriage Act, 1955 for divorce by
mutual consent.
3. The facts as emerging are that, petitioner No. 1 is wife
whereas petitioner No. 2 is husband. Their marriage was
solemnized on 15-04-2012 at Sangmeshwar, however, the couple
could reside together hardly for four days and from 19-04-2012,
petitioner No. 1 started residing with her parents, having moved
out of matrimonial house, due to incompatibility and
temperamental issues. Attempts to reconcile relations have failed
and ultimately the petitioners purported to take divorce on
14-12-2014 under aegis of respected members of their
community, by execution of an affidavit. The petitioners had
decided not to claim any monetary benefits from each other and
had also undertaken not to lodge any cases against each other
and further agreed to file proceedings for divorce by mutual
consent.
4. Accordingly, Hindu Marriage Petition No. 83 of 2015
seeking dissolution of marriage and divorce by mutual consent
was filed on 18-02-2015 in the court of Civil Judge, Senior
Division, Jalgaon. The learned Judge having regard to
requirement of intervening statutory period of six months for
divorce by mutual consent, has kept next date in the matter on
18-08-2015.
5. During pendency of said proceedings, the petitioners had
filed an application Exhibit-10 on 08-04-2015 seeking waiver of
expiry of the statutory period. Petitioners had referred to that
the marriage has been dissolved before the community and their
relationship as husband and wife has come to an end. The
petitioners are not at all interested to cohabit with each other. It
is referred to in the application that they are young and their
second marriage is also arranged. In view of aforesaid, they
prayed for waiver of expiry of statuary period of six months
prescribed under section 13-B (2) of the Hindu Marriage Act,
1955 and for passing decree of divorce by mutual consent.
6. Section 13-B (2) of the Hindu Marriage Act, 1955 reads
thus-
“13-B Divorce by mutual consent -
(1) …....
(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”.
7. It appears that decision of this court in writ petition No.
1381 of 2010 (Rakesh Parekh Vs. State of Maharashtra) as well as
decision of learned single judge in the case of Sau Sonali W/o
Manishkumar Chandak and another Vs. Nil reported in 2008(1) All MR 227
were relied on. The court had considered that in the case of
Rakesh Parekh, he had already filed a petition for divorce under
section 13 of the Hindu Marriage Act, 1955, and as such,
decision in said case would not be applicable to the request, for,
facts would not be similar. It appears to have been considered by
the court that the decision in the case of Sau Sonali referred to
above had been in view of exceptional hardship being faced, the
High Court under inherent powers was pleased to grant waiver of
statutory period, and as such, said decision would not apply to
present situation. The court, as such, went on to reject
application under Exhibit-10.
8. The petitioners with a view to support their request for
waiver of expiry of six month period pursuant to section 13-B(2)
of the Hindu Marriage Act, 1955 for divorce by mutual consent
have annexed to the memo of petition a photocopy of the
decision dated 03-08-2007, in the case of Sau Sonali W/o
Manishkumar Chandak and another Vs. Nil reported in 2008(1) All MR 227,
wherein the court appears to have taken into account exceptional
hardship being faced by the petitioners-therein as well as that
they were living separately and all efforts for reconciliation had
failed, and thus, claim for exemption (waiver) of statutory period
of six month for divorce by mutual consent is allowed.
9. Learned counsel Mr. Deshmukh, refers to above decisions
and relies on said judgments as well as judgment rendered by a
division bench of this court in the case of Satnosh Lalmani Tiwari Vs.
Mrs. Aardhana Devi Santosh Tiwari reported in AIR 2013 Bombay, 12. In
that case, the petition had been filed by husband for divorce
under section 13 (1) (i-a) of the Hindu Marriage Act, 1955 on the
ground of cruelty, which was dismissed. Appeal was preferred
and during pendency of appeal, proceedings were sought to be
converted into a petition for divorce by mutual consent. The
division bench after taking into account the decisions reported in
AIR 1986 Andhra Pradesh 167 (K. Omprakas Vs. Nalini), as well as 1989 Madras
Law Journal Reports 319 (Santhana Krishnan Vs. Poongothari Ammal) and AIR
1998 Kerala, 97 (Sreelatha Vs. Deepthy Kumar), had considered that as
parties were residing separately since 2006 and the petition for
divorce was filed in 2010, which was dismissed in June-2012 and
appeal was filed in July-2012 and as consent terms were also
filed in said proceedings, there is no possibility of reconciliation
between the parties and their decision to have divorce is not
influenced by any external factors including coercion, intimidation
or undue influence by any person including the parents. The
proceedings appear to be given treatment as proceedings for
divorce by mutual consent and, as such, in said case the division
bench has considered that waiting period can be waived in a
suitable case by the appellate court, when the court is fully
satisfied on the proved facts that marriage tie should be severed
by mutual consent immediately as the parties have been living
separately for more than the time prescribed under section
13-B (2) of the Hindu Marriage Act, 1955 and that they have
been fighting for sufficiently long period. The High court had
considered that the appellate court may not wait for further
period of six months after filing of application seeking conversion
of petition into a petition for divorce by mutual consent.
10. Learned counsel for the petitioners Mr. Deshmukh also
relies on the decision in case of Mittal Ramesh Panchal and Manoj
Dayalal Panchal Vs. Nil reported in 2014 AIR Bombay 80 : 2014 (3) All MR 60
: 2014 (3) Mh.L.J. 755 : 2014 (4) LJSoft 46, wherein customary divorce
appears to have been taken by the parties. The parties had got
remarried acting under the bonafide belief that their marriage
has come to an end on execution of deed of divorce on
13-06-2011 before a notary. However, they subsequently
realized this may not be valid in law and proceedings under
Section 13-B of the Hindu Marriage Act, 1955 seeking divorce by
mutual consent, were filed. A spouse had applied for visa, which
was not issued, for, divorce under the deed is not a decree in the
eye of law. In the circumstances, the court considered that no
fruitful purpose could be achieved by forcing the parties to wait
for six months. The division bench in the peculiar circumstances
of that case has considered invoking of inherent powers under
Codes of Procedure. That was a matter being considered by the
high court in the appeal, after the family court rejected request
for waiver of statutory period.
11. Learned counsel further refers to a decision of the
Supreme Court in the case of Devinder Singh Narula Vs. Meenakshi
Nangia reported in 2012(5) ALL M R (S.C.) 895 : 2012(6) Mh.L.J.(S.C.) 769 :
2012(10) LJSoft (S.C.) 16. The Supreme Court in paragraphs No. 12
and 13 of the judgment has observed thus-
“12. It is quite clear from the materials on record that
although the marriage between the parties was solemnized
on 26.3.2011, within 3 months of the marriage the petitioner
filed a petition under Section 12 of the Hindu Marriage Act,
1955, for a decree of nullity of the marriage. Thereafter, they
have not been able to live together and lived separately for
more than 1 year. In effect, there appears to be no marital
ties between the parties at all. It is only the provisions of
Section 13-B(2) of the aforesaid Act which is keeping the
formal ties of marriage between the parties subsisting in
name only. At least the condition indicated in Section 13-B
for grant of a decree of dissolution of marriage by the
mutual consent is present in the instant case. It is only on
account of the statutory cooling period of six months that
the parties have to wait for a decree of dissolution of
marriage to be passed.
13. In the above circumstances, in our view, this is one of
those cases where we may invoke and exercise the powers
vested in the Supreme Court under Article 142 of the
Constitution. The marriage is subsisting by a tenuous thread
on account of the statutory cooling off period, out of which
four months have already expired. When it has not been
possible for the parties to live together and to discharge
their marital obligations towards each other for more than
one year, we see no reason to continue the agony of the
parties for another two months.”
12. Learned counsel further refers to a decision dated 17th
November, 2014 of the Supreme Court in Civil Appeal No. 10561 of
2014 (Arising out of SLP(C) No. 13941 of 2013) Prachi Singh Patil Vs. Shri
Rahul G. Patil, wherein with reference to facts that for last more
than six years efforts made for settlement had failed and
ultimately the parties decided to reside separately by virtue of
consent terms arrived at between them on 26th September, 2014.
In the circumstances, the Supreme Court in exercise of power
under Article 142 of the Constitution of India, declared the
marriage to have been dissolved.
13. Thus, it is clear that, the Supreme Court had exercised the
powers under Article 142 of the Constitution of India, when it had
been not possible for the parties to live together.
14. Learned counsel for petitioners relying on aforesaid
judgments urges to this court to pass order of waiver of expiry of
statutory period of six months after institution of the proceedings
for divorce by mutual consent pursuant to section 13-B(2) of the
Hindu Marriage Act, 1955.
15. However, I am required to take into account a decision by a
learned single judge of this court in writ petition No. 9131 of
2011 (Rachna Shailendrakumar Kasliwal Vs. The State of Maharashtra and
another) decided on 15-12-2011, wherein learned single judge
declined the request of petitioners. It was urged before learned
single judge that there is no embargo on the exercise of powers
of court from considering the waiver of the period, and as such,
there is no impediment. In that case, the parties were litigating
for a year before the family court and during pendency of the
proceedings parties had arrived at a consensus and filed the
proceedings under section 13-B and considering all the aspects, it
was urged that application for waiver of six months ought to have
been allowed and a decree of divorce ought to have been passed.
However, learned single judge considered that said issue is no
longer res-interga referring to two decisions, one by the Supreme
Court of India reported in 2009 (10) SCC 415 and another by a
division bench of this high court reported in AIR 2009 Bombay 12 and
considered that court has no jurisdiction to waive period of six
months as required under section 13-B (2) of the Hindu Marriage
Act, 1955. It was further considered that application for waiver
does not spell out any undue hardship.
16. In present case, it appears that parties have been residing
separately immediately after solemnization of their marriage i.e.
after about a period of four days. The marriage had taken place
in April-2012 and was dissolved by customary divorce in
December-2014. The proceedings for divorce under Hindu
Marriage Act, 1955 have been lodged in February-2015 and
application Exhibit-10 for waiver of period has been moved in
April-2015.
17. In the decisions which are sought to be relied on by the
learned counsel for the petitioners, the facts are quite different
from the facts in the present case. In one of the cases, the
divorce proceedings were filed way back in 2006 and
subsequently the parties decided to have divorce by mutual
consent, as the proceedings which were already pending, the
court decided to give proper treatment to period consumed by
the same and decided granting of waiver after the parties went
for divorce by mutual consent. In other case of the division
bench, factual situation was different and customary divorce had
been obtained and that bonafide belief led the parties to contract
second marriage. In that case the court deemed it appropriate to
invoke inherent powers.
18. So far as the case of Supreme Court is concerned, the
Supreme Court invoked article 142 of the Constitution of India
and allowed the application for divorce by mutual consent by
waiving the statutory period.
19. It would be useful to consider observations by the Supreme
Court in paragraphs No. 27 to 31 in the case of Anil Kumar Jain Vs.
Maya Jain reported in (2009)10 Supreme Court Cases 415, which read
thus:
“27. In all the subsequent cases, the Supreme Court
invoked its extraordinary powers under Article 142 of the
Constitution of India in order to do complete justice to the
parties when faced with a situation where the marriage ties
had completely broken and there was no possibility
whatsoever of the spouses coming together again. In such a
situation, this Court felt that it would be travesty of justice
to continue with the marriage ties.
28. It may, however, be indicated that in some of the
High Courts, which do not possess the powers vested in the
Supreme court under Article 142 of the constitution, this
question had arisen and it was held in most of the cases that
despite the fact that the marriage had broken down
irretrivebly, the same was not a ground for granting a
decree of divorce either under Section 13 or Section 13-B of
the Hindu Marriage Act, 1955.
29. In the ultimate analysis the aforesaid discussion
throws up to propositions. The first proposition is that
although irretrievable breakdown of marriage is not one of
the grounds indicated whether under Sections 13 or 13-B of
the Hindu Marriage Act, 1955 for grant of divorce, the
said doctrine can be applied to proceeding under either of
the said two provisions only where the proceedings are
before the Supreme Court. In exercise of its extraordinary
powers under Article 142 of the Constitution the Supreme
court can grant relief to the parties without even waiting for
the statutory period of six moths stipulated in Section 13-B
of the aforesaid Act. This doctrine of irretrievable
breakdown of marriage is not available even to the High
Courts which do not have powers similar to those exercised
by the Supreme Court under Article 142 of the Constitution.
Neither the civil courts nor even the High Courts can,
therefore, pass orders before the periods prescribed under
the relevant provisions of the Act or on the grounds not
provided for in Sections 13 and 13-B of the Hindu Marriage
Act, 1955.
30. The Second proposition is that although the
Supreme Court can, in exercise of its extraordinary powers
under Article 142 of the Constitution convert a proceeding
under Section 13 of the Hindu Marriage Act, 1955, into one
under Section 13-B and pass a decree for mutual divorce,
without waiting for the statutory period of six months, none
of the other courts can exercise such powers. The other
courts are not competent to pass a decree for mutual
divorce if one of the consenting parties withdraws his/her
consent before the decree is passed. Under the existing
laws, the consent given by the parties at the time of filing of
the joint petition for divorce by mutual consent has to
subsist till the second stage when the petition comes up for
orders and a decree for divorce is finally passed and it is
only the Supreme Court, which in exercise of its
extraordinary powers under Article 142 of the Constitution
can pass orders to do complete justice to the parties.
31. The various decisions referred to above merely
indicate that the Supreme Court can in special
circumstances pass appropriate orders to do justice to the
parties in a given fact situation by invoking its powers
under Article 142 of the Constitution, but in normal
circumstances the provisions of the statute have to be given
effect to. The law is explained in Sureshta Devi Case still
holds good, though with certain variations as far as the
Supreme Court is concerned and that too in the light of
Article 142 of the Constitution.”
20. Observations of the division bench of this court in the
case of Principal Judge, Family Court Nagpur Vs. Nil reported in AIR 2009
Bombay, 12 are,
“The period specified by Legislature as prerequisite to filing
and grant of a decree for divorce on mutual consent is
expected to be complied with and its observance is not
discretionary at the whim of the Court. The legislature
scheme clearly shows that the specified periods are not
optional for the parties to be complied with because the
cause of action is completed only upon conclusion of the
period and clearly mandates the Court to satisfy the
requirements of law before passing a decree. The provisions
of Section 13B(2) of the Act provide that parties should be
given six months period to ponder and reconsider their
decision which is obviously after filing of the first motion in
terms of Section 13B(1) of the Act. This is a kind of benefit
founded on social outlook and undisputed legislative intent.
The parties are expected to consider whether their mutually
taken decision to file a petition under Section 13B(1) was
correct one and it should be affirmed by filing a second
motion and praying for a decree of divorce on mutual
consent or they should withdraw the first motion or render it
ineffective and live together if their marriage can be saved.
The mutual consent ought to continue from the date of
institution of first motion till passing of the decree. This is
the significance of the provisions of Section 13B(2) of the
Act. It will not only be unjust but would be impermissible on
accepted norms of statutory interpretation that this period of
six months is treated as optional, condonable or could be
waived at the request of the parties. The law must be given a
meaning that would be applicable and acceptable generally
and not to a particular case. Firstly, the legislature has not
provided any power of relaxation to the Court in regard to
the stated period of six months under section 13-B(2).
Secondly, if this procedure is adopted at the behest of the
parties by the Court, it will amount to denial of a statutory
benefit of rethinking. The period of six months is the product
of the legislature and the Courts have always upheld its
validity. To waive or abolish by judicial dictum a specific
provision of the legislature would amount to negating a
statutory provision which is otherwise constitutional and
cannot easily be dropped in reality. No prejudice is caused
to the parties by merely waiting for a short period of six
months before they take a vital and pertinent decision in
regard to their marriage which is a social sacrament
coupled with civil rights and obligations and which they had
entered upon voluntarily and happily. Impulsive and
impatient decisions rarely guide the parties to the logical
and correct decision. They must have time to ponder over
their decision and reassure themselves that the decision of
dissolving their marriage is correct and needs to be
implemented. For arriving at such a vital decision the period
of six months is to be held as mandatory and in conformity
with the legislative intent it expressed in no uncertain terms
in the relevant provisions.”
21. As such, the decisions which have been rendered in the
cases relied on by the learned counsel, would not be able to
assist petitioners in the present case, particularly when, in
majority of cases the litigation went on for more than the period
as required by statute, and in very peculiar and unusual facts
courts have in some cases waived the period. Decisions relied
upon on behalf of the petitioners may not assist the petitioners
for waiver statutory period.
22. The division bench of this court in the decision reported in
AIR 2009 Bombay 12 has referred to rationale and reasons underlying
the provisions of section 13-B of the Hindu Marriage Act, 1955
and the Supreme Court in the decision reported in (2009)10 Supreme
Court Cases 415, has ruled that the Supreme Court can in exercise
of extraordinary powers under Article 142 of the Constitution of
India convert a proceeding under section 13 of Hindu Marriage
Act, 1955 into one under section 13-B of Hindu Marriage Act,
1955 and pass decree of divorce by mutual consent without
waiting for the statutory period of six months. The Supreme
Court has also observed that neither civil courts nor even high
courts can pass orders before the period prescribed under
relevant provisions of the Act or on the grounds not provided for
under sections 13 and 13-B of the Hindu Marriage Act, 1955.
23. In the present case, though the parties appear to have
agreed for divorce, and contend to have arranged for their
respective second marriages, no particulars have been given and
though it is being urged that passage of six months would cause
undue hardship to the petitioners, those have not been spelt out
in the application. In such a case, the order impugned can hardly
be faulted with.
24. Taking into account aforesaid and in the circumstances, I
do not deem it appropriate to accede to earnest request being
made by the petitioners under present writ petition.
25. Writ Petition, as such, stands dismissed. Rule stands
discharged.
Sd/-
( SUNIL P. DESHMUKH, J. )
