Allahabad High Court
Vijay Agarwal vs Smt. Suchita Bansal on 20 July, 2023
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:144430-DB Court No. - 39 Case :- FIRST APPEAL No. - 839 of 2023 Appellant :- Vijay Agarwal Respondent :- Smt. Suchita Bansal Counsel for Appellant :- Sudhanshu Kumar,Swapnil Kumar Hon'ble Saumitra Dayal Singh,J.
Hon'ble Vinod Diwakar,J.
1. Heard Sri Swapnil Kumar, learned counsel for the appellant and Sri Prem Chandra, learned counsel for the opposite party.
2. The present appeal has been filed against the order of the Principal Judge, Family Court, Agra in Joint Divorce Petition No. 1204 of 2023 (Smt. Suchita Bansal and Vijay Agarwal).
3. By that order, the learned court below has refused to waive the condition of six months imposed under Section 13B(2) of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act, 1955'). Thus, it has refused to entertain the second motion petition within six months from the date of filing of the first motion petition. The first motion petition was filed on 15.5.2023 whereas the second motion petition was filed on 17.5.2023. Relevant to the controversy, provision of Section 13B of the Act, 1955 read as below :
"13B Divorce by mutual consent. (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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petition referred to in subsection (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised 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."
4. The issue involved is no longer res integra. In Amardeep Singh Vs. Harveen Kaur (2017) 8 SCC 746, it was held as below :
"19. 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 13 B(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 32A 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. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned.
20. 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."
5. That principle of law laid down by the Supreme Court has not been departed from, in any subsequent or other decision of that Court.
6. After considering the provisions of law, the Supreme Court had thus clarified that though the provision of Section 13B(2) postulates a cooling period of six months, that stipulation of time was not mandatory. Not only the provision stipulating six months' time period was held to be directory, further, the Supreme Court held that the discretion to waive that stipulation of time would vest in the Court dealing with the second motion petition. The intent of the decision of the Supreme Court and the interpretation of the law made by it are clear as daylight. Once the Supreme Court observed that the stipulation of time was directory and that the discretion to waive it may be exercised in the individual facts and circumstances of each case, by the Court, clearly, it had left no manner of doubt to arise with any party, less so the Court itself, as to who may exercise the discretion.
7. Insofar as the Supreme Court interpreted the statutory provision and laid down the law, that decision of the Supreme Court may never have been described as an exercise referable to Article 142 of the Constitution of India.
8. Article 142 of the Constitution of India enables the Supreme Court to do complete justice in the facts of any case. However, by very nature of that power, whenever exercised, that Court never seeks to lay down any proposition or principle of law. Here, to the contrary, the Supreme Court laid down the law in no uncertain terms. It took note of the statutory provision contained under Section 13B of the Act, 1955 and interpreted it to reach the conclusion that the same was was directory and that the discretion to waive the stipulation of time would vest with the Court dealing with the second joint motion petition, seeking to dissolve the marriage between those parties.
9. Therefore, the observation to the contrary made by the learned court below is plainly unsustainable. It arises on a complete misconstruction of an unequivocally clear judgement of the Supreme Court.
10. On merits, as to the waiver to be granted, again as held by the Supreme Court in Amardeep Singh Vs. Harveen Kaur (supra), four conditions are required to be satisfied by the parties. In the present case, there is no element of doubt that those conditions stood satisfied. Admittedly, the parties have been living separately for the last 12 years. Efforts for mediation were made on more than one occasion. Those have failed. As to terms of settlement, it is also undisputed that the present appellant has agreed to pay to the opposite party a sum of Rs. 1,50,00,000/- towards permanent alimony etc. Of that Rs. 60,00,000/- has already been paid over to the opposite party and the balance Rs. 90,00,000/- is lying in deposit with the learned court below. The parties have no children born to the marriage. Last, it has been brought to the notice of the Court that the parties are still young being about 40 years of age.
11. In view of the above, as an Appellate Court, we exercise discretion and grant the waiver as was sought by the parties, before the learned court below. Accordingly, the second motion petition filed on 17.5.2023 may be taken up expeditiously, as long pendency of such proceedings under the circumstances noted above would definitely prolong the agony of the parties.
12. Before parting, we may observe, though the Family Courts must remain sensitive to possibilities of settlement between an estranged couple, yet, it is not their duty to insist and enforce a settlement every time, though the marriage appears to be irreconcilably broken.
13. The appeal is allowed. No order as to cost.
Order Date :- 20.7.2023
SA
(Vinod Diwakar, J.) (S.D. Singh, J.)