Himachal Pradesh High Court
_____________________________________________________________________ vs Shivali Mehta on 9 May, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr.R No. 127 of 2022
Date of Decision: 9.5.2023
_____________________________________________________________________
Umesh Thakur
.........Petitioner
Versus
Shivali Mehta
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Y.P. Sood and Mr.Praveen Chauhan,
Advocates.
For the Respondent: Mr. Prashant Sharma, Advocate.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant criminal revision petition filed under Section 397 Cr.PC, challenge has been laid to order dated 9.2.2022, passed by the learned Additional Principal Judge-I, Family Court, Una, District Una, H.P., in Criminal Misc. Application No. 264 of 2020 in Case No. 30 of 2020, whereby the learned trial Court while accepting the prayer made by the respondent under Section 125 of Cr.PC, for grant of interim maintenance burdened the petitioner with liability to pay Rs. 7,000/-per month.
::: Downloaded on - 10/05/2023 20:36:14 :::CIS 22. Facts of the case, as emerge from the record are that marriage .
inter-se petitioner-Umesh Thakur and respondent Shivali Mehta, was solemnized on 22.2.2019 as per Hindu Customs and Rites. Since on account of certain differences, parties were unable to live together, respondent started living separately with her parents. After being separated from the husband, respondent instituted proceedings under Section 125 of Cr.PC, seeking therein interim maintenance. Vide order dated 9.2.2022, learned trial court directed the petitioner to pay sum of Rs. 7,000/- as interim maintenance. Though petitioner being aggrieved and dissatisfied with the aforesaid order approached this Court in the instant proceedings but this court having regard to the nature of dispute inter-se parties deemed it necessary to make an attempt for reconciliation between the parties.
3. On 2.82023, parties came present before this Court and stated that they are ready to get the decree of divorce by way of mutual consent.
As per compromise, petitioner agreed to pay sum of Rs. 8.00 lac as permanent alimony to the respondent. Apart from above, Rs. 84,000/-, lying deposited in the learned trial court on account of maintenance under Domestic violence Act was also agreed to be paid. Matter was adjourned for ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 3 today's date, enabling the petitioner to pay the amount agreed to be paid by .
him towards permanent alimony.
4. Parties have come present and have filed two applications bearing CrMP No. 1551 of 2023, under Section 482 Cr.PC for deciding the criminal petition on the basis of compromise and HMA Petition No. 1552 of 2023 under Section 13 B of the Hindu marriage Act read with Section 151 of the CPC, praying therein to grant decree of divorce by way of mutual consent and to waive off the statutory cooling period of six months.
5. Petitioner and respondent, who are present in the Court, state that they of their own volition and without there being any external pressure have entered into compromise, whereby they have resolved to settle their dispute amicably inter-se them. They state that since they have decided to get their marriage dissolved by way of mutual consent and in this regard, have filed application under Section 13 B of the Hindu Marriage Act, instant proceedings filed under Section 397 of the Cr.PC can be disposed of in terms of the compromise arrived inter-se parties.
Respondent Shivali Mehta, who has received demand draft of Rs. 4.00 lac today states that final decree in the proceedings filed under Section 13 B of the Hindu Marriage Act, may not be passed till the time, remaining amount ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 4 of Rs. 4.00 lac is paid to her. Statements of both the parties are taken on .
record.
6. Since parties have resolved to settle their dispute amicably inter-se them and sum of Rs. 4.00 lac already stands paid to the respondent by way of demand draft, there appears to be no impediment in accepting the prayer made by the petitioner for setting aside order dated 9.2.2022, passed by the court below, whereby he has been burdened with the liability to pay sum of Rs. 7,000/- per month as interim maintenance to the respondent. Ordered accordingly.
7. As far as second prayer with regard to dissolution of marriage under Section 13 B of the Act is concerned, this Court is of the view that when power to dissolve marriage vests with the District Judge, it would be appropriate in case, aforesaid application filed under Section 13 B of the act, is transferred to the learned Additional Principal Judge, Family Court, Una, District Una, HP, within whose jurisdiction both the parties reside.
Aforesaid prayer is acceptable to both the parties.
8. Having taken note of the fact that both the parties are living separately, statutory cooling period of six months for grant of divorce by way of mutual consent can by waived by this Court. It would be apt to take note of judgment dated 5.10.2020, passed by this Court in Cr.Revision ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 5 Nos. 19 and 20 of 2019 a/w CMPMO No 391 of 2020, titled Vivek Paul .
v. Anupama, relevant paras whereof are reproduced as under:
14 ..................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 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 rdivorce to the parties by mutual consent."
15. 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."
16. 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 11 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 ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 6 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 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?
r 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 ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 7 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 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. as 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 ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 8 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."
9. Reliance is also placed on judgment passed by this court in Bharti Kapoor v. Des Raj, CMPMO No. 271 of 2017, decided on 31.10.2018, relevant paras, whereof read 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 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."
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 ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 9 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. Neeta
13. 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 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 ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 10 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 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 ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 11 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 noncompliance with the provisions; the fact that the noncompliance 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 r 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.
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 ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 12 parties resuming cohabitation and there are chances of .
alternative rehabilitation."
12. It is quite apparent from bare perusal of judgment 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.
13. In the case at hand, both the parties after having explored possibility of rapprochement and finding no success there, have approached the court for dissolution of marriage by way of mutual consent and as such no fruitful purpose would be served by keeping the matter pending for six months."
10. In view of the above, Registry is directed to transfer the aforesaid petition alongwith complete record i.e. application filed under Section 13 B of the Act, statements made on oath by the parties, to the learned Principal Judge, Family Court, Una, District Una, HP, enabling it to decide the same expeditiously in terms of the mandate contained in the instant judgment. Learned counsel for the parties undertake to cause presence of their respective clients before the court below on 22.5.2023, enabling it to pass decree of divorce by way of mutual consent in terms of aforesaid observations made in the earlier part of the judgment, waiving statutory cooling period of six months. Needless to say, on the date fixed by the court, learned court below shall record first statement of the parties and thereafter shall not pass final order till the time remaining sum of Rs.
4.00 lac is not paid by the petitioner towards permanent alimony. Since parties have already compromised the matter, all the cases filed by the ::: Downloaded on - 10/05/2023 20:36:14 :::CIS 13 parties against each other shall be deemed to have been withdrawn .
forthwith. In the aforesaid terms, present petition stands disposed of, so also pending applications.
May 09, 2023 (Sandeep Sharma),
(manjit) Judge
r to
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