Allahabad High Court
Amit Singh vs Smt. Sandhya Singh on 14 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2674
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- FIRST APPEAL No. - 64 of 2018 Appellant :- Amit Singh Respondent :- Smt. Sandhya Singh Counsel for Appellant :- Amol Kumar Counsel for Respondent :- Sanjay Kumar Pandey Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(As per Saurabh Lavania,J.) Case called out in the revised list. None appeared on behalf of the respondent.
Heard learned counsel for the appellant.
The instant appeal has been filed challenging the judgment and order dated 16.05.2018, passed by the Principal Judge, Family Court, Lucknow, in Misc. Case No. 19/2018 (Amit Singh v. Smt. Sandhya Singh).
Facts, in brief, of the present case are to the effect that the marriage between the appellant and respondent was solemnized on 15.12.2017 at Shiv Mandir, Shivpuri, Ghaziabad as per Hindu Rites and Rituals. Thereafter, the matrimonial relations between the parties become estranged, as such, the respondent left here matrimonial house and started living at her parental house w.e.f. 10.05.2018. In these circumstances, appellant filed a Suit under Section 13 of the Hindu Marriage Act, 1955 (in short 'Act, 1955') registered as Misc. Case No. 18/2018 (Amit Singh v. Smt. Sandhya Singh), which was withdrawn as not pressed. Thereafter, the appellant filed a Suit for judicial separation under Section 10 of the Act, 1955 registered as Misc. Case No. 19/2018 (Amit Singh v. Smt. Sandhya Singh), which was dismissed on 16.05.2018 by the Principal Judge, Family Court, Lucknow with the following observation:-
"iqu% /kkjk&10 esa ;g Li"V izko/kku micaf/kr fd;k x;k gS fd /kkjk&13 esa mfYYkf[kr fdUgha Hkh vk/kkj ij /kkjk&10 dk okn izLrqr fd;k tk ldrk gSA fgUnw fookg vf/kfu;e ds bu izko/kkuksa ds lexz voyksdu ls ;g Li"V gS fd fookg gksus ds ,d o"kZ i'pkr~ gh U;kf;d i`FkDdhdj.k dk dksbZ okn U;k;ky; esa izLrqr fd;k tk ldrk gSA oknh dk izfrokfnuh ds lkFk fookg fnukad 15-12-2017 dks lEiUu gqvk FkkA vr% oknh dk fookg gq, vHkh ,d o"kZ O;rhr ugha gqvk gSA ,slh fLFkfr esa izLrqr okn iathd`r gksus ;ksX; ugha gSA rn~uqlkj vknsf'kr fd;k tkrk gSA i=koyh nkf[ky nQ~rj gksA"
Assailing the order dated 16.05.2018, under appeal, the counsel for the appellant submitted that under Section 10 of the Act, 1955, the legislature has not provided any limitation for presenting a petition for grant of decree of judicial separation whereas for presenting the petition for getting the decree of divorce, the petition can be filed as per the limitation provided under Section 14(1) of the Act, 1955 and the Court below while dismissing the petition for decree of judicial separation filed by the appellant erred in law in considering the limitation provided for presenting the petition for getting the decree of divorce.
Learned counsel for the appellant further submitted that the controversy involved in the instant case is covered by the judgment passed by the High Court of Madras in the case of Indumati v. Krishnamurthy reported in 1998 SCC OnLine Mad 477 : (1999) 1 CTC 210, wherein the High Court of Madras after taking into consideration the provisions of the Act, 1955, observed that "from the above legal position, it is clear that even without leave, a petition for divorce could be entertained and no separate Order on an application under Sec. 14 (1) granting leave is required. The proviso to Section 14(1) of the Act itself is an answer to the contentions raised by learned counsel for petitioner."
The relevant paras of the judgment passed in the case of Indumati (supra) on reproduction read as under:-
"12. In a Divisions Bench decision of the Calcutta High Court reported in Rabindra Nath Mukherjee v. Iti Mukherjee @ Chatterjee, 1991 (II) D.M.C. 227: 95 (1991) C.W.N. 1085, this legal position was elaborately considered. Paragraph 6 onwards is relevant for our purpose. Paragraphs 6 to 16 read thus:-
"The expression "entertain", however, as pointed out by the Supreme Court in (2) Laxmiratan Engineering Works, AIR 1968 SC 488 and in (3) Hindustan Commercial Bank, AIR 1970 SC 1384, may not necessarily mean receiving or accepting the plaint or the petition, or the initiation of the proceeding, but may mean "adjudicate upon" or "proceed to consider on merits". Therefore, if the relevant expression in Section 14(1) was "it shall not be competent for any Court to entertain any petition .... unless one year has elapsed since the date of the marriage", I would have held that all that is necessary is the expiry of one year, not necessarily before the presentation of the petition, but before the date on which the Court adjudicates thereon or proceeds to consider on merits. But the express user of "the word "presentation" in the expression "unless on the date of the presentation of the petition one year has elapsed since the date of the marriage" nakedly stands in the way of such a construction and I regret my inability to delete the words "on the date of presentation of the petition" by any amount of judicial activism.
7. But the reasons that are weighing with me for holding these provisions to be directory and thus to require substantial compliance only, and not to be mandatory warranting strict adherence on pain of rejection or dismissal, are as hereunder.
8. The period of three years, as originally enacted by the Legislature, has now been reduced to one year only by the Amendment Act of 1976. That, in my view, clearly indicates that the Legislature itself has been convinced that the period provided for "fair trial" to marriage was unduly long and required circumscription.
9. If the Legislature considered this "fair trial rule" to be of that great importance and of that paramount necessity for the stability of marriage to make it mandatory, it would have inserted similar provisions in the other matrimonial legislations also by way of later amendments. It may be noted that the Legislature has amended rather extensively the Parsi Marriage & Divorce Act, 1936 but without inserting any such analogous provision. If the Legislature really intended the provisions to be that mandatory, it would have a fortiorari inserted such provisions in the other matrimonial legislations, with Article 14 of the Constitution mandating equal protection of laws and Article 15 interdicting any discrimination on the ground of religion. If Hindu Marriages and Special Marriages warranted protection of "fair trial rule", the Christian or the Parsi marriages cannot be discriminated by denial of such protection.
10. The Proviso to Section 14(1) would also indicate that the provisions requiring intervention of one year between the date of marriage and the date of presentation for petition for divorce are not that mandatory. The proviso provides for leave to the parties by the Court to present petition before the expiry of such period on the ground that the case is of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. But the proviso proceeds to provide that at the trial "if appears to the court at the hearing of the petition that the petitioner obtained leave "to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until the expiry of one year from the date of marriage...". Now a leave obtained by supperesio veri or suggestio falsi should be treated as vitiated to the extent of being non est and the Proviso, therefore, provides that "the Court may dismiss the petition" but without prejudice to any petition which may be brought after the expiry of one year as aforesaid. But since the Court may also decree the petition only with the rider that the decree shall not be operative before one year from the date of the marriage, the petition, though filed before the prohibited period of one year, and that too on misrepresentation or concealment, stands fully legalised and regularised and the prohibition that the decree shall not be effective until one year from the date of marriage may itself become of no practical effect or utility as in contested divorce cases, a decree is seldom available before that period, notwithstanding the directive in Sec. 21-B(2)of the Act.
11. A premature petition presented with leave wrongfully obtained is no better, if not worse, than one presented without leave, and if such a tainted petition can nevertheless be decreed, then I am yet to know why premature petition, without any such taint, cannot be similarly decreed. Once the Legislature has been found to have permitted decreeing of a premature petition founded on leave obtained dishonestly, the provision in Section 14(1) prohibiting presentation of petition before the prescribed period cannot be held to be that mandatory to warrant rigid compliance and must be held to be directory which require substantial compliance only. For, to hold otherwise would amount to rule that law favours the dishonest maneuverer and discriminate against the honesterrant.
12. There is yet another way of looking into the matter. While I do not suggest that the Legislature, or even the Judiciary, goes or can always afford to go in a common-sense course, we must, whenever possible, interpret laws in a common- sense way and by importing a little hit of common sense whenever necessary. Now, Section 14 (1) does not at all provide for any waiting period for a matrimonial proceeding for judicial separation which can be decreed only on grounds which justify divorce, nor for dissolution of marriage by a decree of nullity under Sec. 11. Now, while pregnancy of the wife per alium at the time of marriage is a ground for nullifying the marriage under Section 11, pregnancy per alium after the date of marriage is a ground for divorce under Section 13 and, therefore, for judicial separation also under Section 10. Judicial Separation is very often a stepping to a divorce and, more often than not, a decree for judicial separation serves, as the foundation for a decree of divorce under Section 13 (1)(i). From the matrimonial point of view, a post-marital per alium pregnancy is obviously more deprecable than a per-marital one and if the aggrieved husband intending to proceed for divorce on the ground of post-marital per alium pregnancy of the wife is still mandatorily required to give a "fair trial" to the marriage for one year, I do not understand why a husband shall be relieved therefrom when he proceeds to sue the wife for Judicial separation on the same ground or to sue the wife for a declaration of nullity on the ground of per alium pregnancy of the wife at the date of marriage.
13. "Then again, under the provisions of Section 23-A, if one spouse sues the other for, say, restitution of conjugal rights or for Judicial separation, the other spouse may not only oppose the relief sought, but may himself or herself claim for any relief, including divorce, on the ground of the suing spouse's adultery, cruelty or desertion. One can, therefore, easily visualise a case where one spouse has sued the other for restitution or judicial separation within, say, a month from the date of marriage and the other spouse on entering appearance within, say, one month thereafter, makes a claim for divorce in the written statement. As at present advised, I have doubts as to whether the provisions of Section 14(1) would stand in the way of such a counter-claim".
14. At any rate, a petition for Judicial separation is not within the ambit of Section 14 and, as already noted, under Section 13A, the Court, in a divorce proceeding on the ground of cruelty, as is the case before us, may grant Judicial separation. A petition, even though labelled as one for divorce, should not therefore be rejected "on the ground of having been presented before one year from the date of marriage, but the Court should proceed to trial in order to ascertain whether the materials on record would justify a decree for Judicial separation. As the Supreme Court observed in (4) Pratap Singh v. Shri Krishna Gupta, AIR 1956 SC 140, the tendency of the Courts towards technicalities or formalities are to be deprecated for it is the substance that must count and must prevail and take precedence over form. A party's bona fide right to judicial separation cannot be scuttled in limine solely on the ground that the party, on legal advice or otherwise, brought himself within the prohibition of Section 14(1) by labelling his or her petition as one for divorce.
15. The Division Bench decision of this Court in Smritkana v. Dilip Kumar AIR 1982 Cal. 247, cannot, on a careful reading, be construed to have laid down any contrary proposition, but, on a meaningful reading, would go to support the ratio of my view. There also the Division Bench, after holding the petition for divorce to be not maintainable on the ground of having been filed within about 6½ months from the date of marriage, nevertheless proceeded to consider as to whether a decree of judicial separation could be awarded. It is true that, as already noted, under Section 13A, a decree for judicial separation can be awarded "on a petition for dissolution of marriage by a decree for divorce". If the Division Bench held Section 14 (1) to be that mandatory, then it would have had to hold that the petition, as one for divorce, being beyond the competence of the Court, to entertain, there was no legal and proper "petition for dissolution of marriage by a decree of divorce", on which alone a decree for judicial separation should be awarded under section 13-A.
16. To go back to the decision of the Supreme Court in Pratap Singh v. Shri Krishna Gupta, AIR 1956 SC 140, some rules are so important and fundamental that they go to the root of the matter and must be treated as mandatory and any non-compliance therewith would vitiate everything. Some are not that fundamental and even though mandatory in form substantial compliance therewith would be "good enough. In the absence of the ''fair trial' rule in the Indian matrimonial legislation for the Christians, the Parsis, the Muslim women and also in the absence of any such provision even in the Hindu Marriage Act or the Special Marriage Act for matrimonial proceedings for judicial separation and for declaration of nullity, and for the other reasons stated herein before, I have not been able to persuade my self to hold that Sec. 14(1) is that mandatory to warrant rejection or dismissal of the petition presented without rigid and strict compliance thereof, I would rather hold them to be directory to require substantial but not literal, compliance. This aspect was not considered by the Division Bench in Smritkana v. Dilip Kumar, A.I.R. 1982 Cal. 247 but there is nothing contrary either to the view I propose to take." (Italics supplied)
13. The aforesaid decision was followed by another learned Judge of the Calcutta High Court in the decision reported in. Chandrima Guha v. Sumit Guha, 1994 (II) D.M.C 6.
14. From the above legal position, it is clear that even without leave, a petition for divorce could be entertained and no separate Order on an application under Sec. 14 (1) granting leave is required. The proviso to Section 14(1) of the Act itself is an answer to the contentions raised by learned counsel for petitioner.
15. In this case, when this defect was noted, petitioner was cautious enough to file an application itself, and the same is pending before the Family Court. Therefore, there is substantial compliance of Section 14(1) of the Hindu Marriage Act.
16. While deciding the question whether the respondent will be entitled to any relief on the petition for divorce, the question of exceptional hardship and exceptional depravity also will have to be considered, and taking into consideration the same, the Court may also give such direction as it may think necessary. If by the time the Court takes up the case merits, one year time has also expired, I think the Court can take note of the subsequent events also. In a case whether a decree could be granted subject to the condition that it will not take effect until one year after the date of marriage, it is also clear therefrom that a decree on merits also could be passed if the court takes up the matter for consideration on merits after a period of one year from the date of marriage. The question of dismissing the petition for divorce also will not arise.
17. Now I come to the decision of this Court reported in Meganatha Nayagar v. Shrimathi Susheela, AIR 1957 Mad. 423. There, the question that came for consideration was, whether this Court should interfere in an order granting leave under Section 14 of the Hindu Marriage Act. The question now before us was not the matter in issue in that case. Learned Judge (Ramaswami, J.) was considering the scope of evidence that has to be let in while considering an application under Section 14. It was held in that case that the Court has to decide whether the allegations made in the affidavit filed on the application are such that if proved, they would amount to exceptional hardship or depravity. In fact such finding has to be entered on the basis of the affidavit. Learned Judge was also cautious enough to say that at that time the petitioner is not expected to try a petition in advance. Learned Judge further said that he has not merely decide on the basis of the affidavit filed support of the petition whether exceptional hardship or exceptional depravity has been proved. Learned Judge has also enumerated certain guidelines basing on English decisions as to what is exceptional hardship or exceptional depravity."
We have heard learned counsel for the appellant and gone through the record.
For deciding the issue involved in the present case, which is to the effect that "whether a petition for getting the decree of judicial separation can not be filed prior to completion of one year of marriage?", we feel it appropriate to quote relevant sections of the Act, 1955. The same are as under:-
"4. Overriding effect of Act.--Save as otherwise expressly provided in this Act,--
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
9. Restitution of conjugal rights.--When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
10. Judicial separation.--[(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.] (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
11. Void marriages.--Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
12. Voidable marriages.--(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:--
[(a) that the marriage has not been consummated owing to the impotence of the respondent; or]
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)] the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage--
(a) on the ground specified in clause (c) of sub-section (1), shall be entertained if--
(i) the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied--
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of [the said ground].
13. Divorce.--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--
[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.--In this clause,--
(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]
(iv) [* * *]
(v) has, [* * *] been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; [* * *] [Explanation.--In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly].
(viii) [* * *]
(ix) [* * *] [(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground--
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,--
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or [bestiality; or] [(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974), [or under the corresponding Section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.--This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).] [13-A. Alternate relief in divorce proceedings.--In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.] [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 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.]
14. No petition for divorce to be presented within one year of marriage.--(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, [unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce the [expiration of one year] from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the [said one year]."
Before dealing with the point involved in the present appeal, it would be appropriate to consider the difference between "Judicial Separation" and "Divorce".
In Indian Society, marriage is considered as a sacrament. It is an irrevocable relationship between husband and wife established through rituals and customs.
A blissful marital life is a sheer result of unconditional love, faith, belief, passion and determination between couples who ensure to stay together in every phase of life. But things turn out ugly when both the spouses experience lack of interest, mistrust, misunderstandings, differences, etc... amongst one another. Unfortunately, this results in the couple filing for Divorce. But the eyes of law believe in giving an opportunity to couples in the form of Judicial Separation.
Before 1955, there was no relief available to either party in case of a failed marriage. They had to continue with the marriage and couldn't break the marriage. After Hindu Marriage Act, 1955 things changed in favour of both parties to the marriage. Now, in case of a failed marriage, the parties do not need to suffer in the marriage and can easily break their matrimonial alliance through Judicial Separation or by a decree of Divorce.
Judicial Separation is a provision under the Indian marriage laws, wherein both the husband and the wife get an opportunity to introspect about giving a chance to their marriage, before going on with the divorce proceedings. Under a decree of Judicial Separation, both the parties live separately for a period of time getting adequate space, independence and time to think about continuing their marriage or not. During this phase, both the parties still carry the same legal status of being husband and wife and yet at the same time live separately also.
Judicial Separation does not terminate marriage whereas in divorce the parties are no more husband and wife and hence the marriage ends.
Judicial Separation is a step prior to a divorce. The purpose of judicial separation is to provide an opportunity to the parties to reconcile their difference.
In case of divorce, parties cease to be husband and wife. Divorce puts an end to the marriage and all mutual rights, and obligations stand terminated. The parties are free to marry again.
Either party to the marriage, whether solemnized before or after commencement of the Hindu Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation. After a decree is passed in favour of the parties, they are not bound to cohabit with each other. Some matrimonial rights and obligation, however, continue to subsist. They cannot remarry during the period of separation. They are at liberty to live separately from each other. Rights and obligations remain suspended during the period of separation. The grounds for judicial separation are same as for divorce.
Needless to say that the Act, 1955 is a "Special Act" relating to marriage among Hindus. Section 4 of the Act, 1955 provides overrding effect to any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
It appears from the above quoted provisions of the Act, 1955, that for dissolution of marriage among Hindus, a decree of divorce is necessary on the grounds envisaged under Section 13 of the Act, 1955. For presenting the petition for getting the decree of divorce, limitation is provided under Section 14 of the Act, 1955. As per Section 14 of the Act, 1955, the petition for divorce under Section 13 of the Act, 1955 can be presented only after completion of one year of marriage, however with the leave of the Court, the same can be filed before expiry of one year from the date of marriage. No limitation in the Act, 1955 (Special Act which relates to marriage among Hindus) has been provided for presenting the petition under Section 9, 10, 11 and 12 of the Act, 1955.
Needless to say that golden rule of interpretation of an Act/Statute is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning, irrespective of the consequences.
It is evident from the above quoted provisions of the Act, 1955 that the language and words used therein are clear, plain and unambiguous. We feel that taking into consideration the difference between "Judicial Separation", which is a step prior to divorce and it is for the purpose to provide an opportunity to the parties to think about continuing their marriage, and "Divorce" under Section 13 and 13(B) of the Act, 1955, which terminates the bonding of marriage, the legislature/framers of the Act, 1955 i.e. Parliament has not provided any period or limitation for presenting the petition under Section 10 of the Act, 1955 for a decree of judicial separation.
Taking into consideration the aforesaid facts and the reasons as well as the relevant provisions of the Act, 1955 and the observations made by the High Court of Madras in the case of Indumati (supra), we are of the considered opinion that the order dated 16.05.2018, passed by the Principal Judge, Family Court, Lucknow is unsustainable in the eye of law.
For the foregoing reasons, the order dated 16.05.2018, passed by the Principal Judge, Family Court, Lucknow is hereby set-aside. The matter is remanded back to the Principal Judge, Family Court, Lucknow to decide the case of the appellant on merits in accordance with law.
The appeal is allowed with the aforesaid observation.
Order Date :- 14.11.2019 Arun/-