Delhi High Court
Anita Sarwal vs Deepak Sarwal on 5 February, 1992
Equivalent citations: 46(1992)DLT502, I(1992)DMC420
JUDGMENT C M. Nayar, J.
(1) The present petition is directed against the order of Additional District Judge dated October 11, 1991, only to the extent that he declined to waive the second Motion under Section 13-B of the Hindu Marriage Act, 1955, (hereinafter referred to as t Act) and has not passed any order with regard to the same. The decree for divorce was prayed under Section 13-B of the Act, without waiting for the statutory period of six months.
(2) The brief facts of the case are that the petitioner and respondent were married on December, 14, 1987 at Delhi according to Hindu rites. The parties resided and lived together as husband and wife till 17th August, 1990. No child has been born out of the wedlock. The parties separated from each other and started living separately since August 17, 1990, in view of the irreconcilable differences between them. The petitioner filed a criminal complaint registered as Fir No 26 3 of 1990, inter alia under Section 498-A/406/34 Ipc with police station Chitranjan Park, Nanakpura, New Delhi. The relations, friends, as well as, well-wishers of both the parties voluntarily and mutually were able to settle their differences in respect of their rights and claims against each other and an agreement dated October 9, 1991, as a consequence was entered into between the parties. The petitioner, as well as, the respondent filed a petition thereafter for dissolution of their marriage by a decree of divorce under Section 13B of the Act, which related to divorce by mutual consent. The statements of the parties were recorded before the Additional District-Judge to the effect that they cannot live together and as a consequence have settled their claims in terms of the agreement and have moved the joint petition of their own free will, without any force, fraud and undue Influence.
(3) The Additional District Judge passed the order on the game day i.e. on October Ii, 1991, allowing the petition and taking the same on record. He further ordered that the second Motion may be made within the statutory period of limitation. The petitioner, as well as, the respondent are aggrieved by this part of the order and have prayed that the marriage may be dissolved after waiving of the statutory period of six months, as provided in Section 13-B of the Act.
(4) The short question, which arises in this petition is, whether, the requirement of law, as contained in sub-Section 2 of Section 13-B is a matter of mere formality and whether, the said period can be waived. The relevant provisions of Section 13-B may be reproduced as follows : "13-B. Divorce by mutual consent (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be 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, that 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 than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after bearing the parties and after making such inquiry as it thinks fit, that 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."
(5) The learned Counsel for the petitioner, as well as, for the respondent have argued that the requirement of a Motion within the time specified under sub-Section (2) of Section 13-B is merely a matter of formality and that a decree of divorce can be granted, without waiting for the period of six months, specified under sub-Section (2), if a Court is satisfied in a case that the requirement of sub-Section I of Section 13-B is fulfillled. Therefore, it is contended that the said period can be waived if, the Court is satisfied that the parties 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. The Court, however, is at liberty, in terms of sub-clause (B) of the said Section, on being satisfied after hearing the parties and after making such enquiry, as it thinks fit and that the marriage has been solemnized and that the averments in the petition are true, to pass a decree of divorce declaring the marriage, to be dissolved with effect from the date of the decree.
(6) The Counsel have relied on judgment of this Court in Dhanjit Vadra v. Smt. Beena Vadra, 199U(3) Delhi Lawyer 43. The Counsel have also referred to the provision of Section 23 of the Act for the proposition that, where the divorce is sought on the ground of mutual consent, the Court only has to be satisfied that such consent has not been obtained by force, fraud or undue influence. The said provision is reproduced as follows: "23. Decree in proceedings.-(1) 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 force, fraud or under influence:
(7) Reference is also made to the unreported judgment of the Orissa High Court in Mihir Narayan Mohanty v. Sadyalaxmi Patnaik , where, it has been held that there is no bar for passing an order even earlier than specified time of six months, and order of the Supreme Court in Transfer Petition No. 282 of 1990 dated March 12, 1991 Smt. Archana Bansal v. Rajinder Kumar Banaal, which was subsequently followed by the City Civil Court at Calcutta. There is no doubt that the Delhi High Court in Dhanjit Vadra's case (supra), as well as, the Madras High Court in Santhana Krishnan v. Poonagothai Ammal, Ii (1989) Dmc 443, have taken the view that the period, as specified in sub-Section (2), can be waived and the same is directory and a mere part of procedure. The controversy seems to have been set at rest by a judgment of the Hon'ble Supreme Court in Smt. Sureshta Devi v. Om Prakash, where, the Court has interpreted the provisions of Section 13-B and explained the essential requirements of the said provision. I may refer to paragraph 13 of the said judgment, which reads as follows: "From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnums was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not by a party to the joint motion under sub-Section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-Section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties ...if the petition is not withdrawn in the meantime, the Court shall...pass a decree of divorce..."What is significant in this provision is that there should also be mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent."
(8) The Supreme Court has obviously interpreted the provisions, as mandatory and the period, as prescribed in sub-Section (2), has to be adhered to. When the Court is saying that there should also be mutual consent, when the parties move the Court with request to pass a decree for divorce and the Court should also be satisfied about the bona fides and the consent of the parties the statutory period of six months has to elapse. The Court, therefore, gets no jurisdiction to make a decree for divorce, prior to the expiry of the period, as specified in the Section and the consent must continue when the second Motion is made. Paragraph 14 of the said judgment may also be reproduced in this regard: "Sub-Section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard."
(9) I am in respectful agreement with the judgment of the Supreme Court in Smt Sureshta Devi's case (supra) and also hold that the filing of the petition, with mutual consent, does not authorize the Court to make a decree for divorce on the initial petition. There is a period of waiting from 6 to 18 months and the said period cannot be dispensed with.
(10) The petition, as a consequence, is dismissed. There shall be no order as to costs.