Madhya Pradesh High Court
Smt.Laxmi Singh vs Pradeep Singh on 20 April, 2016
F. A. No.177/2011
20.04.2016
Shri Prateek Maheshwari, learned counsel for the
appellant.
Shri Irfan Ali, learned counsel for the respondent.
Appellant/wife - Smt. Laxmi Singh and her husband/respondent - Pradeep Singh are present in person and they have been identified by their respective counsels.
The present first appeal has been filed by the appellant/wife against the judgement and decree of divorce dated 28.01.2011 passed by the Family Court, Indore in HMA Case No.514/2010, whereby prayer for divorce filed by the appellant/ wife has been rejected.
2. During pendency of the appeal, an application under Section 13 (B) of Hindu Marriage Act, 1955 has been filed by both the parties for divorce by mutual consent vide I.A. No.2605/2016 on the following conditions :-
(a) The appellant/applicant No.1 does not claims any amount of permanent alimony in the matter as she is presently self-sufficient and the appellant/applicant No.1 also undertakes not to claim any amount of maintenance even in the future from the respondent/applicant No.2.
(b) The appellant/applicant No.1 and respondent/applicant No.2 (parties to the present appeal) also undertake that they would not make any further future financial claims from each other and they also make complete waiver from any further future claim towards maintenance from each other.
(c) That, in the light of compromise entered into between the parties, all the litigations pending between the parties (including civil and criminal cases) against each other as well as against the family members of the parties shall stand withdrawn.
3. Brief facts of the case are that the marriage between the appellant/wife and her husband/respondent was solemnized on 18.05.1982 at Indore and they have two issues from the said wedlock namely, Abhishek and Abhijeet, who are major now and are residing along with the appellant. The appellant and respondent resided together till 08.11.2007 after which the parties started residing separately from each other due to some differences between them.
4. Learned counsel for the appellant has submitted that now they are ready for grant of decree of divorce by mutual consent on the terms of compromise, as agreed by them and, therefore, preferred this application.
5. Learned Counsel for the parties prays for waiving off the minimum cooling period of six months provided under Section 13-B of the Act.
6. Para 7 to 9 of the judgment in the case of Virendra Singh Rajak Vs. Seema Rajak reported in 2015 (3) MPLJ 188, wherein period of six months has been waived off read as under:-
"7. The other issue which crops up is as to whether at this appellate stage can this court treat this appeal as an application under Section 13-B of the Hindu Marriage Act for grant of divorce by consent and waive off the minimum cooling period of six months provided under Section 13-B of the Act. In this respect we profitably refer the Division Bench decision of Andra Pradesh High Court in the case of K. Omprakash v. K. Nalini reported in AIR 1986 Andhra Pradesh 167 (DB). The relevant extract of the above said judgment is reproduced below :
"9. .....That question is whether the Legislature intended that S.13-B(2) of the Hindu Marriage Act should be treated as a mandatory provision of law or the Legislature intended that section to be treated merely as a directory provision of law. We have already noticed the language of S. 13- B(2). On first impression it is not impossible to hold S. 13B(2) to be mandatory. As a mandatory provision of law calls for its pound of flesh and requires to be complied strictly and it not being satisfied with offerings of more substantial compliance of its commands, we will have to adjourn this matter for six months and postpone the deliverance to the parties from this deadlock by the that period of time (sic). It is well settled preposition of law that a statutory provision, though mandatory in form, can yet be treated as directory in substance. The question then arises whether there is anything in the text of S. 13-B(2) of its context or purpose or design that calls for S.13- B(2) being interpreted as directory? In our opinion, there are weighty reasons warranting the reading of S.13-B Cl. (2) as directory. In that context, we must first call attention to the design of the law expressed in its liberalizing tendency of providing relief to parties on the basis of their mutual consent from their broken marriages. We must remember that this relief is granted by bringing about a profound alteration in the concept of a Hindu marriage from that of a sacrament to a contract. By that alteration, law has definitely set its face against forcible perpetuation of the status of matrimony between unwilling partners. Next, we must note that this six month's time fixed by S. 13-B(2) is not a rule relating to the jurisdiction of the Courts to entertain a petition filed for divorce by consent. That question of jurisdiction is dealt with by S. 13B(1) of the Act and must be strictly complied with. S. 13B(2) is a part of mere procedure. A procedural provision must be interpreted as a handmaid of justice in order to advance and further the interests of justice and not as a technical rule ........
10. For all the above reasons, we are of the opinion that S.13-B(2) of the Hindu Marriage Act should be read as directory only. S. 13B(2), no doubt cautions the Courts of its duty to fight the last ditch battle to save the marriage; but when the Court is fully satisfied, on the basis of the proved facts, that in the interests of justice of the society and the individuals marriage tie should be put asunder immediately, S.13-B(2) does not impose any fetter on the powers of the Court to grant instant decree of divorce. At any rate, we are clearly of the opinion that the time- table fixed by S.13-B(2) does not apply to an appellate Court. The great Telugu poet Vemana said that the broken iron can be joined together, but not broken hearts. Parties have been living apart for long and their wedlock has now virtually become a deadlock. Chances of reunion had completely faded away. In these circumstances, we think it just and proper to grant a decree of divorce straightway. Accordingly we pass a decree of divorce declaring the marriage between the appellant and the respondent as dissolved with immediate effect."
8. Following decisions are in the same lines as the Andra Pradesh High Court decision in K. Omprakash's case (Supra) :-
In the case of Dinesh Kumar Shukla v. Neeta reported in II (2005) DMC 51 (DB).
"11. From the decisions cited, it is clear that provisions of Sub-section (2) of Section 13-B has been held to be directory and not mandatory. This appears to be the consistent view." In the case of Manoj Kedia v. Anupama Kedia reported in I (2011) DMC 456 (DB).
"13. We have already observed in the foregoing paragraphs that the marriage between the parties had broken down irretrievably and there is no reasonable chance for re-union of the parties. They have been living apart for the last nine years. Any prolongation of the legal status of the marriage is not likely to bring out reconciliation. It can only help to accentuate their unhappiness by further fomenting their mutual jealousies. They are litigating against each other on the basis of allegations and counter-allegations for over nine years. In these circumstances, we are ready of the opinion that the present application made by the parties for dissolution of marriage under Section 13-B of the Act, 1955 is not the result of any collusion between the parties nor was it the result of any passing phase of mental agony or temporary feeling of unhappiness. We have no doubt that decree of divorce under Section 13-B of the Act, 1955 can be passed without further waiting for statutory period of six months as per Section 13- B(2) of the Act, 1955."
In the case of Santosh Lalmani Tiwari v. Aaradhana Devi Santosh Tiwari reported in II (2013) DMC 29 (DB).
"6. The intention of the Legislature was to provide minimum period of six months for re- thinking of the parties. If the said provision is made applicable to the Appellate Court, it would be powerless to grant that relief on the basis of the application filed in the lower Court because 18 months must have elapsed by the time the matter reached the Appellate Forum although the parties are still fighting relentlessly in the Appellate Court and, therefore, in our view, the said waiting period of six months can be waived in a suitable case by the Appellate Court because it could not have been the intention of Section 13B(2) that the Appellate Court should, in each case, insist that the parties should go through the futile and meaningless ceremony of again waiting for completion of six months. We are of the view, therefore, that when the Appellate Court is fully satisfied on the proved facts that marriage tie should be severed by mutual consent immediately since the parties have been living separately for more than the time prescribed under Section 13B and that they have been fighting for sufficiently long period and, in such a case, Section 13B does not impose any fetter on the powers of the Court to grant instant decree of divorce. .........
13. Applying the ratio of the aforesaid judgments and the observations made by us, we are of the view that in the facts and circumstances of the present case, parties have been residing separately since 2006. Petition for divorce was filed under Section 13(1) in 2010 and it was dismissed on 12.06.2012. Appeal was filed in July, 2012. The consent terms which are filed before us are indicative of some sober thinking, after exploring all possible avenues for bringing about union or to dissolve the marriage. We have also asked both, husband and wife, who were present in Court and they have reiterated that consent terms have been filed after great deliberations and after taking into consideration the advantages and disadvantages involved in the case. The terms and conditions in the consent terms make it clear that each of them have no further subsisting claims over each other. We are satisfied that there is no possibility of reconciliation between the parties. We are also satisfied that the decision is not influenced by any external factors including coercion intimidation or undue influence by any person including the parents. Both the parties are educated and matured and fully comprehend the contemplated parting of ways. Having regard to these facts, we are satisfied that decree for dissolution of marriage solemnized between the parties has to be passed in terms of the consent terms filed in this Court."
In the case of Mittal Ramesh Panchal & Another v. Nil reported in I (2014) DMC 20 (DB) (Bom.).
"10. The statutory period of six months provided under Section 13B(2) has been provided with a specific intent that the possibility of last minute reconciliation can be worked out in such matters. In dispensation of justice, the Courts are expected to do the justice between the parties by overcoming the technical difficulties, coming in the way of imparting justice. The waiver of statutory period of six months though not specifically provided but same can be read in provisions as the main object of provision is to libralize divorce. The provision cannot be read in rigidity so as to make the provision ineffective and meaningless. The period of six months is nothing but period provided with a view to enable parties to reconsider their decision and instead of dissolving their marriage resolve their difference. It was never the intention of the Legislature that such period is to be observed irrespective of the facts of the case wherein the marriage has been irretrievably broken and there are no chances of reconciliation between the parties or it would be futile exercise to wait for six months."
9. The judgments of Apex Court in the cases of Kanchan Devi v. Promad Kumar Mittal & Another reported in (1996) 8 SCC 90, Ashok Hurra v. Rupa Bipin Zaveri reported in (1997) 4 SCC 226, Swati Verma v. Rajendra Verma & Ors. reported in (2004) 1 SCC 123, Sanghamitra Ghosh v. Kajal Kumar Ghosh reported in (2007) 2 SCC 220, Anil Kumar Jain v. Maya Jain reported in (2009) 10 SCC 415, Devindra Singh Narula v. Meenakshi Nangia reported in (2012) 8 SCC 580 is further worthy of reference, where the Apex Court has permitted conversion of a petition for divorce under Section 13 of the Act into that of a petition u/S.13-B of the Act while the same was pending in shape of appeal."
7. Considering the above and the fact that the rival parties are staying separately from each other since more than eight years and all efforts towards reconciliation have failed, the marriage has broken down irretrievably as agreed upon by the rival parties, we allow the I. A. No.2605/2016, application for grant of divorce by way of mutual consent and set aside the impugned judgment and decree dated 28.01.2011 passed by Family Court, Indore in HMA Case No.514/2010.
8. As a necessary consequence, a decree of divorce is granted to the appellant-wife and respondent-husband by way of consent under Section 13-B of the Act. The marriage solemnized between the appellant-wife and respondent-husband on 18.05.1982 stands dissolved.
9. In view of the above order, the parties are restrained from making any further claims from each other arising out the dissolved marriage. No costs.
(P. K. Jaiswal) (Vivek Rusia)
Judge Judge
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