Himachal Pradesh High Court
Deepak Chauhan & Anr vs State Of H.P. & Ors on 12 December, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.58 of 2022 Date of Decision: 12.12.2022 .
_______________________________________________________ Deepak Chauhan & Anr. .......Petitioners Versus State of H.P. & Ors. ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioners:
Mr. Naveen Awasthi, Advocate.
For the Respondents: Mr. Sudhir Bhatnagar and Mr. Narinder Guleria, Additional Advocate Generals with Ms. Svaneel Jaswal Deputy Advocate General and Mr. Sunny Dhatwalia, Assistant Advocate General, for the respondent-State.
Ms. Rajni Kumari, Advocate, for respondent No.3.
_______________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition filed under Section 482 Cr.P.C, prayer has been made on behalf of the petitioners for quashing of summoning order dated 12.11.2021, issued by learned Chief Judicial Magistrate, Hamirpur, District Hamirpur, H.P., in Case No.94 of 2021, titled as Aradhana Kumari versus Deepak Chauhan and another.
2. Precisely, the facts of the case, as emerge from the record are that the marriage interse petitioner namely, Sh. Deepak Chauhan 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 13/12/2022 20:34:43 :::CIS 2and respondent No.3, Smt. Aradhana Kumari was solemnized on 2.12.2014 as per Hindu rites and rituals and thereafter, both the parties were living happy married life and out of their wedlock, one .
boy was born on 26.04.2016. Since, both petitioner No.1 and respondent No.3 were unable to live together on account of certain differences, respondent No.3 started living separately since October, 2021. Since, parties failed to resolve their dispute amicably interse them, respondent No.3 filed complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ( for short 'D.V. Act') against her husband namely, Sh. Deepak Chauhan and father-in-law Sh. Sunil Kumar. Learned trial Court taking cognizance of the averments contained in the aforesaid complaint, issued process against the petitioners vide order dated 12.11.2022 (Annexure P-1).
3. Being aggrieved and dissatisfied with issuance of aforesaid process, petitioners approached this Court in the instant proceedings for quashing of summoning order as well as consequent proceeding pending before the Court below.
4. Having regard to the nature of controversy interse parties, this Court at first instance, deemed it necessary to explore possibility of amicable settlement interse parties. Unfortunately, parties were not willing to live with each other and as such, they resolved to settle their dispute amicably by filing petition under Section 13-B of Hindu ::: Downloaded on - 13/12/2022 20:34:43 :::CIS 3 Marriage Act, seeking therein divorce by way of mutual consent. On 3.8.2022, this Court recorded the factum of compromise arrived interse parties. As per agreement, petitioner No.1 agreed to pay sum .
of Rs. 13.00 lakh in lump sum to respondent No.3 towards permanent alimony, which fact stands duly recorded in order dated 3.08.2022 passed by this Court in the instant proceedings. On 9.9.2022, learned counsel representing the petitioners apprised this Court that demand draft in the sum of Rs. 5.00 lakh has been made in favour of respondent No.3, which was handed over to learned counsel for respondent No.3. On 9.9.2022, this Court passed the following orders:-
"During the proceedings of the case, Sh. Naveen Awasthi, learned counsel for the petitioners has handed over demand draft No. 060967000024000 made in favour of the respondent No.3 to the counsel representing the respondent No.3/non- applicant, in compliance of order dated 03.08.2022, whereby he had undertaken to make the first installment which is a sum of Rs.5,00,000/- and some articles of respondent No.3 such as LIC policy with number 155666474, Aradhana Kumari (Aadvik Chauhan), PNB Bank Account Pass Book No.2199000100311939 Master Aadvik Chauhan under the Guardianship Aradhana Kumari, Post Office of Aadvik Chauhan, Accont Number 010007708293, CIF-324568710, PPF Account of Aaradhna Kumari Account No.010009010048 CIF No.324567684, Monthly Income Scheme of Aaradna Kumari Account Number 020020280569 CIF No.324567684 and Reoccurring Account of Aaradhna Kumari Number 020019384126.
Sh. Naveen Awasthi, learned counsel further states that second installment of Rs. 5,00,000/- shall be paid on or before 30th November, 2022.::: Downloaded on - 13/12/2022 20:34:43 :::CIS 4
Learned counsel representing the respondent undertakes to make available bank account of respondent enabling the petitioner to remit the amount directly in the bank account of respondent in terms of order dated 03.08.2022. The application .
stands disposed of."
5. Today, during the proceedings of the case, learned counsel representing the petitioners submitted that though he has prepared petition under Section 13-B of the Hindu Marriage Act, but same is not being signed by respondent No.3. Respondent No.3, who is present in Court, states that though she has received Rs. 5.00 lakh as recorded in order dated 9.9.2022,but till date other articles, as stands mentioned in order dated 9.9.2022 have been not returned to her.
She stated that she is ready and willing to take divorce by way of mutual consent and she has no objection in signing the petition, but before passing final order on the petition filed under Section 13-B of Hindu Marriage Act, she should be given all the articles as well as amount of alimony decided to be paid to her.
6. Mr. Naveen Awasthi, learned counsel representing the petitioners has handed over demand draft No. 060981, dated 21.11.2022, amounting to Rs. 5.00 lakh to respondent No.3 as second installment, as a result of which, now sum of Rs. 10.00 lakh out of 13 lakh stands paid to respondent No.3. Learned counsel representing the petitioners further submitted that articles agreed to be returned shall also be returned before passing of final decree ::: Downloaded on - 13/12/2022 20:34:43 :::CIS 5 under Section 13-B of the Hindu Marriage Act, which proposal is acceptable to respondent No.3.
7. Since both the parties are living separately for more than .
one year, 'cooling period' of six months can be waived of when there is no possibility of rapprochement and marriage inter se them has broken beyond repair. This court taking note of various judgments of Hon'ble Apex court has repeatedly held that there is no requirement of 'cooling period' of six months in the cases where marriage has broken beyond repair and there is no possibility of parties living together. Reliance in this regard is placed upon judgment rendered by this Court in Bharti Kapoor v . Des Raj, CMPMO No. 271 of 2017, decided on 31.10.2018, wherein it has been held as under:
8. Accordingly, for the reasons and circumstances narrated herein above, present petition is ordered to be converted into a petition under Section 13B of Hindu Marriage Act. Since both the parties are living separately for the last many years and they have been litigating with each other, statutory period of six months as envisaged under Section 13B of the Act for grant of divorce by way of mutual consent, can be waived, especially when there is no possibility of rapprochement of the parties and marriage has broken beyond repair. In this regard, it would be apt to take note of the judgment rendered by the Hon'ble Apex Court in Veena vs. State (Government of NCT of Delhi) and another, (2011)14 SCC 614, wherein the Hon'ble Apex Court has held as under:
12." We have heard the learned counsel for the parties and talked to the parties. The appellant has filed a divorce petition under Section 13(1)(a) of the Hindu Marriage Act, 1955, being HMA No.397/2008 which is pending before the Court of ::: Downloaded on - 13/12/2022 20:34:43 :::CIS 6 Sanjeev Mattu, Additional District Judge, Karkardooma Courts, Delhi. In the peculiar facts and circumstances of this case, we deem it appropriate to transfer the said divorce petition to this Court and take the same on Board. The said petition is converted into one under Section 13B of the Hindu Marriage Act and we grant divorce to the parties by mutual consent."
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9. Reliance is also placed on a judgment rendered by Hon'ble Apex Court in Priyanka Khanna v. Amit Khanna, (2011) 15 SCC 612, wherein Hon'ble Apex Court has held as under:-
"7. We also see form the trend of the litigations pending between the parties that the relationship between the couple has broken down in a very nasty manner and there is absolutely no possibility of a rapprochement between them even if the matter was to be adjourned for a period of six months as stipulated under Section 13-B of the Hindu Marriage Act. 8. We also see from the record that the first litigation had been filed by the respondent husband on 2.6.2006 and a petition for divorce had also been filed by him in the year, 2007. We therefore, feel that it would be in the interest of justice that the period of six months should be waived in view of the above facts."
10. In the instant case also, statutory period of six months deserves to be waived keeping in view the fact that the marriage between the parties has broken beyond repair and there seems to be no possibility of parties living together. The Hon'ble Apex Court in Civil Appeal No.11158 of 2017 [arising out of Special Leave Petition (Civil) No.20184 of 2017] titled as Amardeep Singh vs. Harveen Kaur, decided on 12.09.2017, has held as under:-
"13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini 10, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11, Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11 AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt14. It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion ::: Downloaded on - 13/12/2022 20:34:43 :::CIS 7 to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:
.
i) How long parties have been married?
ii) How long litigation is pending?
iii) How long they have been staying apart?
iv) Are there any other proceedings between the parties?
v) Have the parties attended mediation/ conciliation?
vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
14 AIR 2010 Ker 157
14. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.
15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.
16. 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.
17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and ::: Downloaded on - 13/12/2022 20:34:43 :::CIS 8 the object of the provision. This principle, as formulated in Justice G.P. Singh's "Principles of Statutory Interpretation" (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.15as follows:
15 (2005) 4 SCC 480 "The study of numerous cases on this .
topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: 'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.' " 'For ascertaining the real intention of the legislature', points out Subbarao, J. 'the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered'. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory."
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 reunite 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.
::: Downloaded on - 13/12/2022 20:34:43 :::CIS 920. 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. It is quite apparent from bare perusal of the aforesaid judgments passed by this court (supra) and Hon'ble Apex Court that the very object of aforesaid provision is to enable the parties to dissolve a marriage by consent, especially if marriage has broken irreparably and there is no possibility of rapprochement.
9. Consequently, in view of above, present petition is allowed and summoning order dated 12.11.2021, passed by learned Chief Judicial Magistrate, Hamirpur, H.P., as well as consequent proceedings, are quashed and set-aside with further direction to both the parties to file petition under Section 13-B of the Hindu Marriage Act in the Court of learned District Judge, Hamirpur. During the proceedings of the case, learned counsel representing the petitioners has made available petition under Section 13-B of the Hindu Marriage Act duly signed by both the parties and as such, same is taken on record and the Registry is directed to send the same to learned District Judge, Hamirpur, H.P., alongwith copy of the instant order as well as orders dated 3.8.2022 and 9.9.2022, enabling it to pass appropriate orders, in accordance with law, specifically taking note of ::: Downloaded on - 13/12/2022 20:34:43 :::CIS 10 the observations made by this Court in the instant order as well as judgment passed by this Court in Bharti Kapoor case(supra) with regard to waiving off the "cooling period" in the peculiar facts and .
circumstances of the case. Respondent No.3 states that all the cases filed by her against her husband and other family members be it Civil and Criminal shall stand withdrawn automatically once decree of divorce by way of mutual consent is passed.
10. Learned counsel representing the parties undertake to cause presence of their respective clients before the Court below on 20.12.2022 enabling court below to do the needful within stipulated time. Pending applications, if any, also stand disposed of.
(Sandeep Sharma), Judge 12th December, 2022 (shankar) ::: Downloaded on - 13/12/2022 20:34:43 :::CIS