Calcutta High Court
Goutam Basu vs Nina Basu on 8 February, 1990
Equivalent citations: I(1991)DMC532
JUDGMENT Shamsuddin Ahmed, J.
1. This revisional application is directed against orders dated 15th November 1989 and 29th November 1989 passed by the learned Additional District Judge, 2nd Court at Alipore in Matrimonial Suit No. 13 of 1989.
2. The parties to this application filed a joint petition on 16-5-88 praying for divorce by mutual consent under Section 13B of the Hindu Marriage Act. On 13-10-88 the petitioner husband filed an application stating that he had signed the petition seeking divorce by mutual consent with his wife without understanding the contents of the particular petition and the legal effect of the averments made therein He sought for permission to withdraw the consent indicated in the petition for divorce. The opposite party-wife alleged that the consent was voluntary and the same could not be withdrawn. Subsequently the husband petitioner filed another application stating that the statutory requirements had not been fulfilled as in fact the petitioner did not live separately for a period of one year before the filing of the petition. It was contended that they lived together as hasband and wife at his residence and brought on a diary and record maintained by the wife with regard to accounts of water supply to their residence. He also stated that the wife in his company had visited Puri and stayed in a hotel. During this period it is claimed that they had enjoyed their matrimonial life. Wife opposed this petition and denied the allegations made. The learned Judge gave opportunity to both the parties to cross-examine each other. But at the time of hearing the parties submitted that the petition may be disposed of on the basis of affidavits by the parties. The petitioner asked the court to issue summons for appearance of witnesses but by order dated 10-11-89 the learned Judge rejected the prayer.
3. The learned Judge after going through the records and considering the various decisions referred to by the Bar to him concluded that consent once given in a petition filed under Section 13B of the Hindu Marriage Act can not be withdrawn unilaterally. He also held that it is imperative for the court to enquire as to whether the condition laid down in the particular provision have been duly complied with while filing the petition. The learned Judge on the facts as alleged by the petitioner considered in appropriate to give an opportunity to the petitioner husband to establish his contention by adducing necessary evidence and for this particular reason the learned Judge did not make any final observation with regard to the statements made by the petitioner in connection with the allegation that the conditions contemplated by Section 13B was not complied with.
4. Another point was raised by the petitioner husband that if the application under Section 13B is not disposed of within a period of 18 months the same may become infructuous because of efflux of time. The learned Judge observed that the time taken by the court to finally disposed of the case if runs beyond 18 months that will not violate the provisions of Section 13B(2). According to him the proseedings have duly started within the period of 18 months. By order dated 29-11-89 disposed of a petition filed by the petition No. 1 stating that the court had lost jurisdiction over the application filed under Section 13B of the said Act. The learned Judge disposed of the application by holding that he has already dealt with this point by his order dated 10-11-89.
5. It appears that in this application two questions have been raised. One of them is if any of the petitioners of a petition under Section 13B of the Hindu Marriage Act can unilaterally withdrawn the same at any point of time and the other question is if an application filed under Section 13B of the Act can not be disposed of within a period of 18 months, does the court lost jurisdiction over the same.
6. In dealing with this two questions we purpose to set out Section 13B as under : --
"13B (1) Subject to the provisions we purpose to set out Section 13B as under :--
"13B (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may by 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, and 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 on 18 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 enquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree."
7. On an analysis of the section quoted above it appears that Sub-section (1) imposes certain conditions for making the application and Sub-section (2) lays down conditions for disposal of the same. These conditions may be enumerated as follows :
(1) The couple presenting the petition must be living separately for a period of one year or more before the date the petition is presented; and that they have not been able to live together;
(2) They have agreed that the marriage should be dissolved;
(3) A motion for consideration of a petition filed must be made by both the parties after six months of the presentation of the petition but before expiry of 18 months.
(4) If the petition is not withdrawn in the meantime the court can consider the same and dispose of it on the finding that the averments made in the petition are true and that a marriage was solemnized between the parties.
In view of provisions of Section 13B it appears to us that Sub-section (1) permits both the parties to a marriage together to present to the District Judge a petition for dissolution of marriage under this provision. Subsection (2) provides that after filing of the petition the court shall after hearing the parties and after making enquiry as it thinks fit and having been satisfied that a marriage has been solemnized and the averments in the petition are true may pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. Accordingly, it appears to us that after presentation of the petition both the parties had an obligation to make a mention before the court before whom the application was pending and if such motion is made by both the parties and the petition has not been withdrawn in the meantime the court may be take into consideration the petition presented by both the parties under Section 13B of the Act. Sub-section (1) provides for presentation of the petition and it enables the parties to present such an application for divorce by mutual consent on fulfilment of the conditions laid therein. Sub-section (2) clearly lays down that the court can take into consideration and such a petition only on a motion of both the parties made not earlier than six months after the date of the presentation of the petition and not later than 18 months after the said date. It is, therefore, very clear that only if a motion is made by both the parties within the time-frame prescribed by Sub-section (2) the court can enter into the matter and take the petition for his satisfaction as to the points laid down in the later part to the Sub-section (2). According to us if both the parties failed to make the motion as contemplated by Sub-section (2) the court can not assume jurisdiction on the application and dispose it of as contemplated by Sub-section (2). In the instant case before expiry of six months from the date of the presentation of. the petition the petitioner husband appeared and filed an application stating that he has given consent to the application and disclosed grounds why he gave his consent at the time of presentation of the petition. Accordingly, no motion for consideration of the petition by both the parties as contemplated by Sub-section (2) was made in this case. That being the position the court can not take up the matter for consideration and disposal as provided by law.
8. In this connection a decision reported in 1988 Punjab & Haryana p. 27 (Harcharan Kaur v. Nechhattar Singh), the Divorce Bench of the Court held that either of the parties to, the petition under Section 13B viz. husband or wife is at liberty to revoke its consent at any time before the petition is finally disposed of and if the party is still keen to have the marriage dissolved the other provisions of the Hindu Marriage Act are still available for the grant of necessary relief if a case is made out for the same. The court also held that the object of Section 13B is to provide an additional speedy remedy to the parties to have marriage dissolved if even after sufficient efflux of time both of them find that it is not possible for them to continue as husband and wife any further. The court overruled a decision of the same High Court and also dissented from decision on the point of both the Bombay and Madhya Pradesh High Courts. Relying on this decision a Single Bench Judge of the same court arrived at the same conclusion in a case .
9. In another Division Bench decision , the court came to the same conclusion holding that the court before which a petition under Section 13B of the Act is presented can not proceed to consider the petition on merits after the expiry of six months from the date of presentation if one of the parties to the petition withdraws the consent given or refuses to join the other to make a motion for consideration of the petition on merits. The Kerala High Court in a decision also came to the view that one of the applicants can unijaterally withdraw his consent and the principles laid down in Order 23 Rule 1 of the C.P.C. can not be applied to a case under Section 13B.
10. Contrary views have been taken by different High Courts on the same points. In a single Bench decision , the Court held that what was necessary is that there should be a consent for mutual divorce at the time when the petition is filed. If that consent is a fresh consent of both the parties it will not be possible for any of them to qualify the petition by saying that though initially the consent was voluntarily given still the said party now intends to withdraw it. It may be noted that in this decision the impact of the provision of Sub-section (2) relating to making a joint motion for consideration of the petition prescribed under Sub-section (1) was not considered. Another Single Bench Judgment , held that if a party to the petition under Section 13B is allowed to unilaterally withdraw the application even though the conditions laid down in Section 13B(1) still persist it will defeat the provisions of Section 13B itself In arriving at the conclusion the court has referred to Section 13(bb) of the Act.
11. In Section 23 of the Hindu Marriage Act the provision has been made in respect of the satisfaction of the court in granting a decree in respect of reliefs, claimed in matrimonial disputes. It lays down that when in any proceeding under this Act, whether defended or not, if the court is satisfied that ......(bb) when a divorce is sought on the ground of mutual consent such consent has not been obtained by fraud, force or under influence. The court shall decree such relief accordingly. The learned Advocate for the petitioner submits referring to this provision that the law has provided that an application for divorce on mutual consent can not be disposed of even if it is undefended. As it appears to us that there is no of defending an application under Section 13B of the Act. The application contemplated is a joint application and has to be disposed of on a joint motion made by both the parties. The question of disposing of an application under Section 13B may only arise if after a joint motion as contemplated by Sub-section 2 was made and thereafter either of the party do not come forward in deciding the other points the court can dispose of the application in the manner laid down in Clauses (bb) of Section 23. The provision can not be treated as a provision for disposal of an application ex parte even though the consent contemplated under Section 13B is unilaterally withdrawn. A Single Bench of the Madhya Pradesh High Court in a decision reported in 85 (1) of All India Law Reporter Madhya Pradesh, held that the scheme of a 13B of the Act does not envisage withdrawal of consent by one party during the period of six months which is granted for mutual adjustment. It will appear from the decision above that the court proceeded on the footing that the time framed provided by Sub-section (2), Section (13B) was for the purpose of giving opportunity to the parties to the petition for reconciliation. We also agree to the view that one of the objects of the time frame is to give an opportunity to parties for reconciliation but we may also hold that the time framed is made also for the purpose or reflection by the parties if the consent given at the time of presentation of the petition under Sub-section (1) was freely given or if the party should act on the same consent. From the scheme of Section 13B it does not appear that once consent is given and the petition is presented under Section 13B the parties have no alternative than to act on the same. Had it been so there was no scope for making a provision for making joint motion for consideration of the petition. Accordingly, we are unable to agree with the views expressed by different High Courts on the point that an application under Section 13B once filed can not be withdrawn by either of the parties.
12. Another question was raised if the time framed contemplated by Sub-section (2) is a mandatory one or it is directory. It will appear that the period of six months to 18 months was meant for making of a motion by both the parties. It has no reference to the disposal of the application. It only contemplates making of a motion by both the parties during that period if no such motion is made by both the parties the court will have no alternative than to reject the same without going into the merits of the application within the period. A Single Judge of the Gujarat High Court in a decision held that the provisions of Section 13B(2) is directory. If further held that in an appropriate case an order dissolving a marriage can be passed even before expiry of six months after presentation of the petition under Section 13B of the Hindu Marriage Act. In a Division Bench of the said High Court held that provisions of Section 13B(2) is directory. It further held that if the court was satisfied that the marriage tie should be snapped immediately the provisions of Section 13B does not fetter the court from passing the instant decree of divorce. It further emphasized that it was possible for the appellate court to pass a decree immediately if an application under Section 13B is presented before the appellate court at the time of hearing of the appeal relating to a matrimonial case. We have already indicated that the time framed contemplated by Section 13B(2) is only for the purpose of making the motion. It does not direct the court to dispose of the petition under Section 13B within that time frame. The requirement is that the motion must be made by both the parties together within that time frame. Our attention has been drawn to a Full Bench decision of the Allahabad High Court reported in Vol. XIL ILR Allahabad series as well as a decision of the Supreme Court reported in AIR 1974 SC 1682. These two decisions are authorities on the point as to what should be the consideration in determining whether a provision, mandatory or directory. We need not go into this aspect as we have already held that the provisions of Section 13B(2)INDU MARRIAGE ACT, 1955~^ only relate to the making of the motion by both the parties and in our view that it is a mandatory provision imposing the obligation on the parties to the petition under Section 13B to make a motion within that time frame. This has no bearing in respect of the disposal of the case by I he court within that time frame.
13. We are not aware of any decision on the points dealt with by this order either by the Supreme Court or by our own High Court. The Bar can not also refer to any such decision.
14. As a result of our observations made above this application succeeds. The application under Section 13B presented by the parties to this petition shall stand rejected as the consent has been withdrawn by the petitioner husband.
There will be no order as to costs.
Haridas Das, J.
I agree.