Allahabad High Court
Shalini Massey vs Neeraj Samuel Dass on 7 January, 2020
Author: Shamim Ahmed
Bench: Bala Krishna Narayana, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 4 Case :- FIRST APPEAL DEFECTIVE No. - 392 of 2019 Appellant :- Shalini Massey Respondent :- Neeraj Samuel Dass Counsel for Appellant :- Vashishtha Narayan Tripathi Civil Misc. Delay Condonation Application No. 2 of 2019 Hon'ble Bala Krishna Narayana,J.
Hon'ble Shamim Ahmed,J.
This application has been moved on behalf of the applicant with a prayer to condone the delay in filing this appeal before this Court.
The delay condonation application is supported by an affidavit of the defendant/appellant Shalini Massey.
We have perused the delay condonation application as well as the affidavit filed in support thereof.
We find that the cause shown for delay in filing this appeal in paragraph nos. 5 and 6 of the affidavit accompanying the delay condonation application is sufficient.
The delay condonation application is allowed. The delay in filing this appeal is condoned.
Office is directed to allot regular number to this appeal.
Order Date :- 7.1.2020 SFH .
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Court No. - 4Case :- FIRST APPEAL DEFECTIVE No. - 392 of 2019 Appellant :- Shalini Massey Respondent :- Neeraj Samuel Dass Counsel for Appellant :- Vashishtha Narayan Tripathi Hon'ble Bala Krishna Narayana,J.
Hon'ble Shamim Ahmed,J.
(By the Court) Heard Sri Vashishtha Narayan Tripathi, learned counsel for the appellant.
This appeal is directed against the judgement and order dated 11.10.2019 passed by the Principal Judge, Family Court, Court No. 2, Kanpur Nagar in Case No. 1973 of 2019 (Shalini Massey Vs. Neeraj Samuel Dass) under Section 10A of the Divorce Act, 1869 (hereinafter referred to as the 'Act'), by which application 6-ग jointly moved by the defendant/appellant and the plaintiff/respondent before him with a prayer for waiving the cooling off period of six months stipulated u/s 10A of the Act, has been rejected.
From perusal of the averments made in the affidavit accompanying the stay application filed in this appeal, it transpires that both the parties are Christians. The marriage between the defendant/appellant and the plaintiff/respondent was solemnized on 25.4.2015. However, due to consistent matrimonial disharmony, both the parties started living separately from 17.07.2017 onwards and after having lived separately as such for continuous two years, the defendant/appellant and plaintiff/respondent filed a petition for dissolution of their marriage on the basis of mutual consent under Section 10A of the Act before the Principal Judge, Family Court, Kanpur Nagar on 30.8.2019, which was registered as Petition No. 1973 of 2019. The parties moved a joint application 6-ग before the Principal Judge, Family Court, Kanpur Nagar with a prayer for waiving six months bar for making second move for divorce u/s contained in sub-section (2) of Section 10A of the Act which provides that second motion cannot be made before six months of the first motion.
By the impugned order, the aforesaid application was rejected by the Principal Judge, Family Court, Kanpur Nagar holding that Section 10A of the Act does not contain any provision empowering the Judge concerned to relax or waive six months period for making second move for divorce u/s 10A of the Act.
Learned counsel for the appellant submitted that the learned Principal Judge, Family Court, Kanpur Nagar had illegally failed to exercise the jurisdiction vested in him to waive the six months period for making second motion for divorce u/s 10A of the Act by holding that he had no such power. In support of his contention, learned counsel for the appellant placed reliance upon a Division Bench judgement of the Kerala High Court rendered in the case of TOMY JOSEPH VS. SMITHA TOMY reported in 2018 (4) KerLJ668.
We have heard learned counsel for the appellant and perused the impugned judgement and order and the law reports cited by him in support of his contention.
The Kerala High Court after examining the provisions of Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as "Act of 1955") and Section 10A of the Act, came to the conclusion that the provisions contained in Section 10A of the Act, in substance, are verbatim reproduction of the provisions contained in Section 13B of Act of 1955 and Section 28 of the Special Marriage Act, 1954 (hereinafter referred to as "Act of 1954"). The only substantial difference is that, instead of the period of one year mentioned in Section 13B (1) of the Act of 1955 and Section 28 (1) of the Act of 1954, a period of two years of separate residence is provided u/s 10A(1) of the Act. The Kerala High Court further held that the beneficiaries under the aforementioned provisions of different statutes are persons who want divorce by mutual consent and who file joint petition for that relief. There can be no discrimination amongst them on the ground of religion. Divorce by mutual consent is a secular concept. When the Apex Court has declared the law that the "cooling off period" of six months provided under Section 13B (2) of the Act of 1955 is not mandatory but directory and such period can be allowed to be waived by the Court on satisfaction of certain conditions, denying that benefit to persons who are governed by the Divorce Act, 1869 would amount to unjust discrimination.
Paragraph Nos. 6 to 12 of TOMY JOSEPH (supra) which are relevant for our purpose are being reproduced hereinbelow :-
6. In Amardeep Singh v. Harveen Kaur: AIR 2017 SC 4417, the Hon'ble Supreme Court considered the question whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 for a motion for passing decree of divorce on the basis of mutual consent is mandatory or directory and whether such period can be relaxed in exceptional situations. The object of the provision contained in Section 13B of the Hindu Marriage Act, 1955 was considered by the Apex Court and it was held as follows:
"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."
7. In Amardeep Singh (supra), after analysing the provision contained in Section 13B(2) of the Hindu Marriage Act, 1955, the Hon'ble Supreme Court further held as follows:
"18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following:
i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA, Rule 3, CPC/Section 23(2) of the Act/ Section 9 of the Family Courts Act to re-unite the parties have failed and there is no likelihood of success in that direction by any further efforts;
iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
iv) the waiting period will only prolong their agony.
19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.
21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation."
8. We do not think that the learned Judge of the Family Court was not aware of the decision of the Apex Court in Amardeep Singh (supra). It appears from the impugned order that the learned Judge of the Family Court was under the impression that the decision in Amardeep Singh (supra) is applicable only to a petition for divorce filed under Section 13B(2) of the Hindu Marriage Act, 1955 and that it is not applicable to a petition for divorce filed under Section 10A of the Divorce Act, 1869.
9. At this juncture, we find it advantageous to extract here the provisions contained in Section 13B of the Hindu Marriage Act, 1955 and Section 10A of the Divorce Act, 1869. Section 13B(2) of the Hindu Marriage Act, 1955 reads as follows:
"13B 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 solemnised 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 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."
10. Section 10A of the Divorce Act, 1869 reads as follows:
"10A. Dissolution of marriage by mutual consent.- (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage 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 Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and thy 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 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 by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and 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 declaring the marriage to be dissolved with effect from the date of decree."
11. A close scrutiny of the aforesaid two provisions would show that they are almost in pari materia except with regard to the period during which the spouses shall be living separately. Under Section 13B of the Hindu Marriage Act, 1955, a petition under that provision can be made only if the spouses have been living separately for a period of one year or more. Under Section 10A of the Divorce Act, 1869, a petition under that provision can be made only if the spouses have been living separately for a period of two years or more. In all other aspects, the aforesaid two provisions are almost identical. Therefore, we are of the considered opinion that the dictum laid down by the Hon'ble Supreme Court in Amardeep Singh (supra) would be applicable in case of a petition filed under Section 10A of the Divorce Act, 1869, also.
12. The provisions contained in Section 10A of the Divorce Act, 1869, are, in substance, a verbatim reproduction of the provisions contained in Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954. The only substantial difference is that, instead of the period of one year mentioned in Section 13B(1) of the Hindu Marriage Act, 1955 and Section 28(1) of the Special Marriage Act, 1954, a period of two years of separate residence is provided under Section 10A(1) of the Divorce Act, 1869. The beneficiaries under the abovementioned provisions of different statutes are persons who want divorce by mutual consent and who file joint petition for that relief. There can be no discrimination among them on the ground of religion. Divorce by mutual consent is a secular concept. When the Apex Court has declared the law that the "cooling off period" of six months provided under Section 13B(2) of the Hindu Marriage Act, 1955 is not mandatory but directory and such period can be allowed to be waived by the court on satisfaction of certain conditions, denying that benefit to persons who are governed by the Divorce Act, 1869 would amount to unjust discrimination. Therefore, we are of the considered opinion that the dictum laid down by the Apex Court in Amardeep Singh (supra) is applicable to a petition for divorce filed under Section 10A of the Divorce Act, 1869 and on satisfaction of the conditions laid down in that decision, the Family Court can waive the period of six months stipulated under Section 10A(2) of that Act.
In view of the foregoing discussion, we find that but for the difference in period provided for making the second motion, the provisions of Section 13B (1) of Act of 1955 and 28 (1) of the Act of 1954 and 10A (1) of the Act, the aforesaid provisions are verbatim reproduction of each other. Since the Hon'ble Apex Court while considering the question whether the minimum period of six months stipulated u/s 13B (2) of Act of 1955 in the case of Amardeep Singh v. Harveen Kaur reported in AIR 2017 SC 4417, for a motion for passing decree of divorce on the basis of mutual consent is mandatory or directory and whether such period can be relaxed in exceptional situations or circumstances, held that the period mentioned in Section 13B (2) of Act of 1955 is not mandatory but directory and it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
We have no hesitation in holding that the view taken by the Kerala High Court in the case of TOMY JOSEPH (supra) that the dictum laid down by the Apex Court in Amardeep Singh (supra) is applicable to a petition for divorce filed u/s 10A of the Act and on satisfaction of the conditions laid down in that decision, the Family Court can waive the period of six months stipulated u/s 10A (2) of the Act.
Having gone through the impugned order and the law reports cited by the learned counsel for the appellant and the other material brought on record, we find that the Principal Judge, Family Court, Court No. 2, Kanpur Nagar had illegally rejected application 6-ग merely on the ground that Section 10A of the Act does not empower him to waive of the cooling off period of six months for making the second motion. There is no consideration by him of the circumstances on the basis of which the prayer was made in the joint petition filed by the defendant/appellant and the plaintiff/respondent before him. The impugned order, thus cannot be sustained.
We, therefore, allow this appeal and set-aside the impugned judgement and order dated 11.10.2019 passed by the Principal Judge, Family Court, Kanpur Nagar and remit the matter to him with a direction to decide the application 6-ग filed by the parties in accordance with law.
Necessary exercise in this regard shall be completed by him within a period of four weeks from the date of filing of certified copy of this order before him.
Order Date :- 7.1.2020 SFH