Madras High Court
K.Mohanarangan vs Nil on 22 July, 2022
Author: R.N.Manjula
Bench: R.N.Manjula
C.R.P (PD).No.2016 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 04.07.2022
Pronounced on 22.07.2022
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
C.R.P (PD).No.2016 of 2022
1.K.Mohanarangan
2.Virudambigai @ Vishwa Priya
... Petitioners
Vs.
NIl ... Respondent
PRAYER : Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order and decretal order dated
19.04.2022 in I.A.No. No. Nil of 2022 in FCOP No.NIl of 2022 now
numbered as FCOP.No.64/2022 on the file of the Family Court,
Tiruvannamalai.
For Petitioners : Mr.P.Pandiyaraj
For Respondents : Nil
ORDER
This Civil Revision Petition has been preferred challenging the order of the learned Judge, Family Court, Thiruvannamalai, dated 19.04.2022 made in unnumbered I.A. in FCOP.No.64/2002.
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2. The revision petitioners are the couples who have presented this petition for divorce by mutual consent under Sec.13(B). After presenting the petition for mutual consent this Interlocutory Application has also been filed to waive the mandatory cooling period of 6 months under Sec.13(B)(2)(i) and the said petition was dismissed. Aggrieved over that this Revision Petition has been preferred.
3. Heard the submission made by the learned counsel for the revision petitioners and perused the materials available on record.
4.The learned counsel for the revision petitioners submitted that the couples were married on 23.05.2002 as per the Hindu Rites and Customs; the couples got a male child by name Tharun Bharathi, who was born on 25.05.2003; due to misunderstanding, the couples were living separately for 16 years; however during the year 2007 itself, the husband filed a petition for divorce in MC.No.130 of 2007 at Bangalore which was later transferred to Thiruvannamalai and renumbered as HMOP.No.31 of 2009; since the revision petitioners come to an understanding to get divorce by mutual consent, the earlier petition was withdrawn; several reconciliation made between the 2/10 https://www.mhc.tn.gov.in/judis C.R.P (PD).No.2016 of 2022 couples did not fructify and now they have filed the petition for divorce by mutual consent; the long period of 16 years of marriage did not bring out any mutual understanding between the couples and the cooling period is not going to serve any useful purpose; hence the same should be by reversed; the learned trial Judge without considering the irretrievable loss of marriage and invented its own reasons for not waiving the cooling period. In support of the above contention of the revision petitioner, the judgement of the Hon’ble Supreme Court reported in (2017) 8 SCC 746 [ Amardeep Singh Vs. Harveen Kaur] was cited.
5. In the above said judgement, it is held that the possibility to waive the cooling period can be considered by the Family Court provided in the opinion of the Court there is no possibility for reconciliation. The relevant part of the judgement is extracted as below:
“ (2017) 8 SCC 746 [Amardeep Singh Vs. Harveen Kaur]
13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11, 3/10 https://www.mhc.tn.gov.in/judis C.R.P (PD).No.2016 of 2022 Delhi High Court in Dhanjit C.R.P.No.93 of 2021 Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11 AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt. It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:
i) How long parties have been married?
ii) How long litigation is pending?
iii) How long they have been staying apart?
iv) Are there any other proceedings between the parties?
v) Have the parties attended mediation/conciliation?
vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
14. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony. 4/10 https://www.mhc.tn.gov.in/judis C.R.P (PD).No.2016 of 2022
15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the C.R.P.No.93 of 2021 court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.
16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.
17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of 5/10 https://www.mhc.tn.gov.in/judis C.R.P (PD).No.2016 of 2022 Statutory Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.as follows:
15 (2005) 4 SCC 480 “The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to C.R.P.No.93 of 2021 the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-
quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.” 6/10 https://www.mhc.tn.gov.in/judis C.R.P (PD).No.2016 of 2022
6. In the above observations of the Hon’ble Supreme Court it is made clear that the provision for cooling period can be construed as directory and hence the Courts can exercise their discretion to waive the cooling period the cooling period in cases which are fit. The parameters which has to be taken into consideration before waiving the cooling period also is enumerated under paragraph No.13 of the above judgement as below:
i) How long parties have been married?
ii) How long litigation is pending?
iii) How long they have been staying apart?
iv) Are there any other proceedings between the parties?
v) Have the parties attended mediation/conciliation?
vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
The above six questions raised should be kept as guidelines for arriving at a conclusion whether the cooling period can be waived.
7. In the case in hand the parties got married in the year 2002 but they do not appear to have lived happily. The husband had already filed a petition for divorce in the year 2007. Despite it was withdrawn subsequently, the couples did not choose to live together by patching up their differences. 7/10 https://www.mhc.tn.gov.in/judis C.R.P (PD).No.2016 of 2022 Even though the earlier litigation was withdrawn, the object of withdrawing it was to file a petition for divorce by a mutual consent.
8. Had the earlier petition was withdrawn for rejoining, it can be presumed that the couples had renewed the bond between themselves. The couples seem to have been living with problems and they continued to live separately for more than a decade. There are no other proceedings pending between them and several conciliations attempts also resulted in failure. The question of taking care of the children does not arise because the only son of the couples has attained majority and there cannot be any conflicting claim in respect of custody of the child. It is understood between the parties that the son would get all the legitimate share of the properties of his father. The Sridhana articles of the 2nd petitioner was handed over to her in the year 2007 itself. The 2nd petitioner had waived alimony and she does not expect any other monetary support from the 1st petitioner. Thus, all the requirements which have to be considered for waiving the cooling period are present in the instant case.
9. The whole object of giving the cooling period is to just to give 8/10 https://www.mhc.tn.gov.in/judis C.R.P (PD).No.2016 of 2022 an opportunity to the couples to recall their good old days and iron out the differences by valuing the relationship and re-unite. When the subsistence of marriage is seen as a burden and does not link with the emotional, sexual and physical well-being of the couples and all other attendant circumstances of their life, the marriage will naturally loose its life and there can not be any scope for reunion of the couples between whom there is love lost and life lost.
10. In the case in hand, the couples did not live together for a long time. In fact the years they lived separately surpasses the years they lived together. In these kind of matters the courts need not hesitate to waive the cooling period. Since the parameters laid down by the Hon’ble Supreme Court are seen to be present in the case in hand, the order of the Family Court disallowing the waiver needs to be reversed.
In the result, this Civil Revision Petition is allowed and the order dated 19.04.2022 passed by the Court below in unnumbered I.A. in FCOP 64/2002, is set aside. No costs.
Index: Yes/No 22.07.2022
Speaking / Non Speaking Order
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C.R.P (PD).No.2016 of 2022
R.N.MANJULA, J.
jrs
To
The Family Court, Tiruvannamalai.
C.R.P (PD).No.2016 of 2022
22.07.2022
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