Karnataka High Court
Shri Suraj S/O Baba Mahadev Naik vs Nil on 12 June, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 103546 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 103546 OF 2023 (GM-FC)
BETWEEN:
1. SHRI SURAJ S/O. BABA MAHADEV NAIK
AGE: 33 YEARS, OCC: ENGINEER,
R/O. HONNIKERI, KENI ROAD,
TALUK: ANKOLA,
DIST: UTTAR KANNADA, PIN-581314.
2. SMT. PRATEEKSHA W/O. SURAJ NAIK
AGE: 32 YEARS,
OCC: MEDICAL OFFICER/DOCTOR,
R/O. MARUTHI NAGAR, SHIRWADA,
DIST: KARWAR, PIN-581306.
...PETITIONERS
(BY SRI NARAYAN V. YAJI, ADVOCATE)
AND:
BHARATHI
HM
High Court
of
Karnataka,
Dharwad NIL
...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT IN THE NATURE OF CERTIORARI AND QUASH THE
IMPUGNED ORDER PASSED BY THE LEARNED SENIOR CIVIL
JUDGE, ANKOLA DATED 21/04/2023 ON I.A.NO.1 IN
M.C.NO.10/2023 VIDE ANNEXURE-C TO THE WRIT PETITION
AS IT IS ILLEGAL AND UNCONSTITUTIONAL; CONSEQUENTLY
THIS HON'BLE COURT MAY BE PLEASED TO ALLOW THE
I.A.NO.1 FILED BY THE PETITIONERS BEFORE THE TRAIL
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WP No. 103546 of 2023
COURT UNDER SECTION 13(B) (2) OF THE HINDU MARRIAGE
ACT READ WITH SECTION 151 OF CPC DATED 15/04/2023
VIDE ANNEXURE-B TO THE WRIT PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel Sri Narayan V. Yaji, appearing for petitioners.
2. This petition is filed by the petitioners who are husband and wife seeking to quash and set aside the order dated 21.04.2023 passed by the learned Senior Civil Judge, Ankola in I.A.No.1 in M.C.No.10/2023 vide Annexure-C and consequently allow the application I.A.No.1.
3. Petitioners who are husband and wife filed a petition for divorce under Section 13B (1) of Hindu Marriage Act, 1955 (for short 'the Act, 1955') for a mutual consent divorce stating that they had got married on 28.02.2022 and due to differences of opinion and irreparable hardship they decided to dissolve their marriage by way of divorce through mutual consent. -3- WP No. 103546 of 2023 Having explored the possibility of resolution of the dispute by way of mutual dialogue through relatives, family and close friends to make their marriage work but due to the incompatibility and increasing difference of opinion in relationship and explored all possibility of conciliation. Due to temperamental disturbances, mutual understanding and varying tastes of life style and behavior left with no other alternative filed this petition for divorce before the Senior Civil Judge, Ankola.
4. After filing the mutual consent divorce petition, petitioners filed an application under Section 13B(2) of the Act, 1955 read with Section 151 of CPC to waive and condone the cooling / waiting period of six months from the date of filing of petition for the reasons stated in the affidavit. The application to waive the cooling / waiting period of six months to consider the main petition for divorce by mutual consent came to be rejected by the learned Senior Civil Judge, Ankola for the reason that the "petitioner No.1 is an Engineer, petitioner No.2 is a Medical Officer, except their self served statements in the -4- WP No. 103546 of 2023 affidavit, there is no material to conclude that even during the cooling period of six months also, there is no chance or occasion for both of them to change their decision in any manner, and all efforts made by each of them together and intervention of parents, family elders and best friends to re-concile and for reunion have been ended in vain.
5. Admittedly, the petition is filed for divorce by way of mutual consent between both the husband and wife under Section 13B-(1) of the Act, 1955 to dissolve their marriage as both are not willing to continue their marriage due to serious differences of opinion incompatibility, irreconcilable differences, temperamental misunderstandings, etc., It is stated in the affidavit annexed to the application for condoning the waiting period of six months that both the parties are educated and having explored mutual discussions with each other with regard to the repercussions of decision in seeking for divorce upon life and effect of the judgment, they firmly believe that even during the cooling period of six months -5- WP No. 103546 of 2023 also there would be no chance or occasion for both to change their decision in any manner. They have also stated that all efforts were made by them with the intervention of parents, family members, elders and best friends to reconcile and for reunion which has ended in vain. Therefore, having explored all these possible situations to reunion and join the matrimony and having come to a conclusion that it is not at all possible for them to live together and lead happy life and as a last resort they have filed the present petition for divorce by mutual consent.
6. The learned Civil Judge though has adverted to all these points and facts of the case of the petitioners and having relied upon the Judgment of Hon'ble Apex Court in the case of Amardeep Singh Vs. Harveen Kaur, reported in (2017) 8 SCC 746 and all other judgments relied in the said impugned order and understanding the ratio laid down by the Hon'ble Apex Court in the several Judgments has come to the conclusion that apart from the self serving statements of the petitioners i.e., husband and wife, there -6- WP No. 103546 of 2023 is no material to conclude that even during the cooling/waiting period of six months there is no chance or occasion for both of them to change their decision in any manner to reconcile their differences and join in matrimony. The impugned order also has dealt with issue that the affidavit of the petitioners does not speak anything about the parties having genuinely made efforts to settle their differences and also the length of time that they were married and lived together as husband and wife and also the length of time that they are stayed apart.
7. To decide these aspects, it is necessary to extract Section 13B(1) of the Act, 1955.
"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 parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976) date of commencement 27.05.1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to -7- WP No. 103546 of 2023 live together and that they have mutually agreed that the marriage should be dissolved."
8. Section 13B(2) of the Act, 1955 reads as under :
"13B. Divorce by mutual Consent.-(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 parites 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."
9. Section 13B(2) of the Act, 1955, Section 13B(2) of the Act, 1955 envisages waiting period of six months after the date of presentation of the petition referred to in sub- section 1 and not later than 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 inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition -8- WP No. 103546 of 2023 are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree. This effectively means that after filing of the petition under Section 13B(1) of the Act, 1955 both parties shall make a motion not earlier than six months, but however the discretion is provided to the Court that on being satisfied and hearing the parties and after making such inquiry that the averments in the petition are true pass a decree declaring that the marriage to be dissolved.
10. The Hon'ble Apex Court in the case of Amardeep Singh's case (supra) has laid down certain principles for consideration of an application filed under Section 13B(2) of the Act, 1955.
11. At paragraph No.20 of the said judgment the Hon'ble Apex Court has held that the period mentioned in Section 13B(2) of the Act, 1955 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 -9- WP No. 103546 of 2023 rehabilitation. These are some of the guidelines along with other Judgments which are laid down by the Hon'ble Apex Court while dealing with an application filed for condoning the waiting period of six months petition filed by the husband and wife for divorce decree by mutual consent. The Hon'ble Apex Court in the case of Amitkumar Vs. Suman Beniwal, reported in AIR 2021 SCC OnLine SC 1270 after considering the judgment in Amardeep Singh's case stated supra the Court has held at paragraph No.27 as follows :
"27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B(2) of the Hindu Marriage Act, the Court would consider the following amongst other facts :
(i) the length of time for which the parties had been marred;
(ii) how long the parties had stayed together as husband and wife;
(iii) the length of time the parties had been staying apart ;
(iv) the length of time for which the litigation had been pending ;
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WP No. 103546 of 2023
(v) whether there were any other proceedings between the parties;
(vi) whether there was any possibility of reconciliation;
(vii) whether there were any children born out of the wedlock ;
(viii) whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc."
12. In the present case on hand, the petitioner No.1/husband is an Engineer possessing educational qualification of B.E. (Computer Science) working in a I.T. Major Infosys. Whereas, petitioner No.2 is qualified as BAMS and working as Medical Officer in the Government Hospital, Honnavar. It is stated in the main petition and so also in the affidavit annexed to the application that they have made their best efforts for reconciliation and to patch up their differences of opinion by themselves so also along with their family members, elders and also with good friends. It is stated in the affidavit on oath despite making sincere efforts to reconcile their differences to live in
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WP No. 103546 of 2023happy matrimonial relationship, the efforts have been futile and left with no other alternative they are before the Court. The affidavit on oath and the petition averments very clearly make it apparent that both are very well educated and employed in a permanent job may be securing good financial income, other than that it is seen that they have made sincere efforts to reconcile their differences along with the family members, elders and also with their best friends. Having made all these efforts and failed, they have approached the Court to minimize and resolve their agony and dissolve their dispute by way of securing a divorce and to part as friends rather than living in agony as married couple. It is also borne from the petition averment that they lived together only for few days after the marriage and it is also stated across the bar that there are no children and their marriage is not consummated.
13. This being the facts and circumstances of the case, learned Civil Judge dealing in such intricate emotional family matters would have to consider all these
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WP No. 103546 of 2023aspects before deciding the application against the petitioners unless there is a grave error absolutely not fulfilling the requirement as contemplated in the Act. Though, the provisions of Section 13B(2) of the Act, 1955 says that motion of both the parties shall be made not earlier than six months. The Hon'ble Apex Court in the cases stated supra has clarified this aspect that it is not mandatory but it is directory. The Trial Court ought to have considered the application in the pith and substance and the agony and pain that would be undergone by the petitioners in further forcing them to wait for another period of six months.
14. The present generation unlike what we have seen about 25 to 30 years back, the parties are approaching the Court by filing divorce petitions within a short duration of marriage due to the irreconcilable differences, lack of understanding incompatibility and for other various reasons. When the parties are before the Court by way of mutual consent for divorce and there are no respondents required under the law, it is only their self serving
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WP No. 103546 of 2023statements on oath that will have to be taken into consideration by the Court and in the present facts of the case both the petitioners have stated on oath their hardship the predicament irreconcilable differences, lack of temperament, misunderstanding and incompatibility when all these have been stated in the affidavit and they have hardly stayed together for few days and there being no child or children born from the said marriage, the parties are at discretion to move the family Court or the concerned jurisdiction Court to file petition under Section 13B(1) of the Act, 1955 by way of consent divorce petition.
15. No doubt, the intent of the legislature and the object of the legislative incorporation of this provision is to see the parties do not take a decision in haste out of the anger and spur of the moment and approach the Court without waiting to even explore the possibilities for amicable settlement or mediation. But in the present facts and of the case it is stated by the parties on oath that they have explored all possibilities of an amicable resolution of
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WP No. 103546 of 2023their differences along with their respective family members, elders, their best friends to reconcile and make their marriage work but unfortunately same has been not fructified leaving no option but approach Court and obtain divorce by way of mutual consent.
16. It is also relevant to note that the parties are highly educated, both of them are working and earning good salary they are self sufficient and financially sound that being the case Court ought to take into consideration all these aspects while considering the application filed by the petitioners to condone the waiting / cooling period of six months. In my opinion, the learned Senior Civil Judge has misconstrued the decisions of Hon'ble Apex Court stated (supra) and has dismissed and rejected the application on the ground that there is no material placed on record that they would change their opinion in the period of six months. The parties are aged 33 years and 32 years respectively, it cannot be said that they are very young and immature to not take a decision of their own and it is not that they have not made efforts to see that
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WP No. 103546 of 2023they could patch up their differences and to lead a happy marital life.
17. Under these circumstances, the Judgment of the Hon'ble Apex Court in the Amardeep Singh's case when the Apex Court has held that the provision of Section 13B(2) of the Act, 1955 is not mandatory but directory. It is always open to the family Court or the Court dealing with such matters with discretion to consider the same on the facts and circumstances of the each case and not in a straight jacket formula having said so, I am in agreement with the learned counsel for petitioners that the impugned order passed by the learned Senior Civil Judge deserves to be set aside. Accordingly, I pass the following :
ORDER
(i) Writ petition is allowed.
(ii) The impugned order dated 21.04.2023 passed by the Senior Civil Judge, Ankola in M.C.No.10/2023 on I.A.No.I vide Annexure-C is hereby quashed.
Consequently, I.A.No.I in M.C.No.
10/2023 is hereby allowed.
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WP No. 103546 of 2023
(iii) The waiting period of six months as
contemplated under Section 13B(2) of
the Act, 1955 is condoned.
(iv) The learned Senior Civil Judge, Ankola
shall decide the matter notwithstanding Section 13B(2) of the Act, 1955 and proceed to consider the matter on merits of Section 13B(1) of the Act, 1955 and pass suitable orders within a period of three weeks from the next date of listing / hearing of the matter before the said Court.
SD/-
JUDGE CKK List No.: 1 Sl No.: 28