Madhya Pradesh High Court
Smt. Iti vs Sharad on 8 December, 2016
WP-8119-2016
(SMT. ITI Vs SHARAD)
08/12/2016 :-
Shri Ritesh Inani, learned counsel for the petitioner.
Heard on the question of admission.
Admit.
Issue notice to the respondent.
Shri Padbhanabh Saxena accepts notice on behalf of the respondent.
They are heard.
The present petition is preferred against the order dated 05/12/2016 passed by the learned Family Court, Indore in HMA case No.1536/2016, whereby the learned Judge has dismissed the joint application filed by the parties for waiving off the cooling off period of six months provided under Section 13-b (2) of the Hindu Marriage Act, 1995. The Division Bench of this court by order dated 29.9.2016 passed in W.P. No.6541/2016, considered this question and remanded the matter to the learned trial court to decide a fresh in accordance with law. Order dated 29.9.2016 passed in W.P. No.6541/2016 reads as under :-
âPetitioner has preferred this petition with joint affidavit of himself as well as of respondent being aggrieved by the order dated 15.9.2016 passed in HMA Case No.1165/2016 by which IInd Additional Principal Judge, Family Court, Indore has dismissed their joint application for waiving off cooling period of six months as provided under section 13-B(2) of the Hindu Marriage Act.
2. Facts of the case are as under :-
Marriage of petitioner and respondent was solemnized in the year 2002 under the Hindu customs and rites. Immediately after six months of the marriage differences have started between them and most of the time they remained separately. Out of their marriage one child Samyak was born in the year 2011 who is presently residing with respondent/wife. Due to increase of differences between them they finally started living separately since last 2-3 years. Since the efforts of reconciliation made by the relatives and members of the society have failed they decided to seek divorce by way of mutual consent and accordingly they moved an application under section 13-B of the Hindu Marriage Act before the Family Court, Indore on 6.5.2016. Before entertaining the said application they were directed to appear before the Mediator, however, the mediation has failed which is evident from the report dated 14.10.2016. Since the petitioner and respondent has made up mind to seek divorce, therefore, they moved an application before the Family Court for waiving off the cooling period of six months. Vide impugned order dated 15.09.2016 learned Family Judge has rejected the application on the ground that the Family Court has no jurisdiction to waive off the cooling period of six months, hence the present petition before this Court.
3. Shri Ajay Bagadia, learned counsel for the petitioner submits that when parties have decided to take divorce by way of mutual consent then in view of the law laid down in the case of Nikhil Kumar v. Rupali Kumar reported in AIR 2016 SC 2163, in the case of Virendra Singh Rajak vs. Seema Rajak reported in 2015 (3) MPLJ 188 and in the case of Deepak (Dr.) v.
Smt.Tanuja reported in 2003 (2) JLJ 121 the cooling period is liable to be waived off and the learned Family Court be directed to pass the divorce decree.
4. The aforesaid prayer is not opposed by the respondent who is appearing in person as they jointly filed this present petition. That both petitioner as well as respondent appeared before this court and jointly submitted that they are not able to live together and they mutually agreed that the marriage should be dissolved forthwith and the consent has not been obtained by force or fraud or undue influence. As per the terms and conditions of the divorce petitioner/husband has agreed to give Rs.60 lacs as permanent alimony and in addition to this Rs.15 lacs would be paid in the name of his son Samyak. Petitioner as well as respondent are well educated and belong to the respected families and there is no other dispute between them.
5. The approach of Apex Court in the case of Yogendra Yadav and others vs.State of Jharkhand and another reported in (2014) 9 SCC 653 is that in the cases of compromise petition filed by the parties, the criminal proceedings should be quashed to secure the ends of justice to avoid wastage of time and energy and there is no use of keeping the criminal trial pending even in non- compoundable cases.
6. Now we have to consider when Supreme Court has waived off the period of six months in exercise of powers under Article 142 of the Constitution of India whether High Court can also waive off the cooling period of six months. In pending first appeal this Court has waived off cooling period and granted the decree of divorce by allowing joint application filed u/s 13-B of the Hindu Marriage Act. The question is whether in writ petition can we pass decree of divorce directly or we may direct the Family Court to pass the decree of divorce by waiving off cooling period of six months. To opt second option, we have to consider whether period of six months is mandatory or directory in nature before passing decree of divorce by mutual consent.
7. The Andhra Pradesh High Court in the case of K.Omprakash v. K.Nalini reported in AIR 1986 AP 167 held as under:
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. 13-B(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 power 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. The Kerala High Court in the case of Sreelatha v. Deepthy Kumar reported in AIR 1998 Kerala 97 held as under :-
5. We are of the view that this Court can act on the Memo of Compromise filed before us as indicative of a sane and sober thinking after exploring all possible avenues, if any, for bringing about a union to dissolve the marriage, having failed. We have also verified from the appellant- wife as also the respondent-husband in the presence of their respective counsel in open Court, who also have represented before us that the Memorandum of Compromise has been filed after great deliberations and consideration of the pros and consinvolved in the matter. The terms and conditions, subject to which the parties have agreed to have the dissolution of their marriage make it clear that each one of them has no further subsisting claims over the other.
9. The Karnataka High Court in the case of Smt. Roopa Reddy v. Prabhakar Reddy reported in AIR 1994 Karnataka 12 held as under:
13. The next question is whether the requirement under S. 13-B of the Hindu Marriage Act has to be considered as mandatory or directory.
The words used in the Section shall have to be read in the context in which the liberalized provision has been made by the legislature enabling the unwilling parties to seek divorce instantaneously and thus to put an end to the untold misery. When the intention of the Legislature in introducing S. 13-B(2)is to liberalize and to unlock the wedlock, the legislature has never intended the period of 6 months mentioned in the Act shall be strictly complied with. But, in spirit the Section is directory in nature and it has been incorporated to help 2 discordant spouse to get quick separation and to lead their remaining life without any agony. If S. 13- B(2)is read as mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated. Thus, S. 13- B(2), though it is mandatory in form is directory in substance.
18. Marriage is an union of 2 hearts. Success of married life depends on the edifice built with the mutual trust, understanding,love, affection, service and self sacrifice. Once this edifice is shaken, happy married life will be shattered into pieces. The result is one of misery and emotion. Whether one accepts it or not liberalization in the way of living of individuals and reformation in age old customs and due to modernization and understanding of individual rights and equal status irrespective of sex it is natural for either of the spouse to seek for dissolution. Where the marriage tie has been broken, the Court has to look to the interest of the parties and the welfare of the children as paramount. When it is impossible to live like husband and wife, any compulsion to unite them will lead to social evils and disturbance of mental peace and disorder in the family life. However rigid social fabric it is not the social system but the persona] safety of the parties to the wedlock, shall prevail. This should be the guiding principle in view of S. 13B(1) of the Act. There is complete destruction of the essence of marriage between parties and it has reached the stage of irretrievable breakdown.
19. In the background of the circumstances narrated in the case,the request made by both parties for divorce by mutual consent is the only just and proper way to allow them to spend their remaining period of life happily with contentment instead of compelling them to lead a miserable and emotional life without any constructive purpose.
10. The Madras High Court in the case of R. Venkatasubramanian vs. Ramya Ganesan in Civil Revision Petition (PD) No.2443 of 2016 held as under:
3. L e a r n e d counsel submits that petitioner/husband filed H.M.O.P. No.314 of 2012 on the file of learned Subordinate Judge, Poonamallee, seeking divorce. Both petitioner/husband and respondent/wife have been living separately over a period of four years and hence, they have entered into a Memorandum of Understanding and filed H.M.O.P.No.320 of 2016 seeking divorce by mutual consent. They have also filed I.A.S.R. No.5814 of 2016 in H.M.O.P. No.320 of 2016 to waive the minimum waiting period of six months after presentation of petition for divorce by mutual consent. Learned counsel submits that as per Section 13B(1)of the Hindu Marriage Act, 1955, a petition for divorce by mutual consent could be filed after completion of one year of marriage. In the instant case, both petitioner and respondent have not been living together for the past four years and hence, they have filed I.A.S.R. No.5814 of 2016 in H.M.O.P. No.320 of 2016 seeking grant of waiver, which was returned by the Court below. Hence, this revision has been filed seeking a direction to learned Subordinate Judge, Poonamallee, to take the case in I.A.S.R. No.5814 of 2016 in H.M.O.P. No.320 of 2016 on file.
9. ... Hence, the object of the cooling period of six months is to-retrieve the difference of opinion between the parties. But here, there is no chance for reunion. Because already both the parties are waiting for a long period and only in the Mediation, the matter was settled. In such circumstances, I am of the view, to render complete justice to the parties, six months' cooling period mentioned under Section 13-B(2)of the Hindu Marriage Act is not a bar to grant mutual consent immediately.
10. Further more, on considering the Agreement entered by the parties before the Mediation and on that basis only, Divorce Petition on mutual consent has been filed, this Court is of the opinion that six months' cooling period under Section 13-B(2)of the Hindu Marriage Act is hereby dispensed with and the Principal Family Court, Chennai, is directed to record the evidence of both the parties and dispose of the Petition filed under Section 13-B of the Hindu Marriage Act in accordance with law.
11. That the Apex Court in the recent case of Nikhil Kumar vs. Rupali Kumar (supra) has considered the educational background of the appellant as well as respondent and considering the facts and circumstances of the case the cooling period was reduced and granted the decree of divorce under section 13-B of the Hindu Marriage Act. In the case of Virendra Singh Rajak vs. Seema Rajak (supra) this Court after considering various judgments of the Supreme Court has granted the decree of divorce by reducing the cooling period. In the case of Deepak v. Smt. Tanuja (supra) this Court has held that this Court as well as the trial Court at any stage of proceeding can grant decree by mutual consent if the conditions laid down in section 13-B and Section 23 of the Act are fulfilled by waiving off the period of six months. In the present case petitioner and respondent filed an application for mutual divorce on 6.9.2016.
In the aforesaid cases the Supreme Court has granted the decree of divorce in exercise of powers under Article 142 of the Constitution of India. The High Court has also granted the decree of divorce under section 13-B in number of pending regular appeals under the provisions of the Hindu Marriage Act but here the petitioner has filed the writ petition challenging inter alia the order of the Family Court, therefore, in which we cannot directly grant the decree of divorce to the petitioner but instead of granting the decree of divorce we direct the petitioner as well as respondent to appear before the Family Court on 14.10.2016 which is already fixed for conciliation and the Family Court is directed to grant divorce decree to them under section 13-B of the Act by waiving off the cooling period of six months but after following other procedures as contemplated in said section.
12. With the aforesaid direction, writ petition is disposed off.
No order as to costs.â In view of the aforesaid, we direct the petitioner as well as respondent to appear before the Family Court on 09/01/2017, for conciliation and the Family Court is directed to grant divorce decree to them under section 13-B of the Act by waiving off the cooling period of six months but after following other procedures as contemplated in said Section.
With the aforesaid direction, writ petition is disposed of. No order as to costs.
C.C. as per rules.
Aiyer*
(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE