Himachal Pradesh High Court
________________________________________________________________ vs Des Raj on 6 November, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 271 of 2017 a/w CMP No. 10699 of 2018 .
Decided on: October 31, 2018 ________________________________________________________________ Bharti Kapoor .. Petitioner Versus Des Raj ..........Respondent ________________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 yes.
________________________________________________________________ For the petitioner : Ms. Veena Sharma, Advocate.
For the respondent : Mr. Dalip K. Sharma, Advocate. ________________________________________________________________ Sandeep Sharma, Judge:(oral) Instant petition under S. 24 read with S. 151 CPC has been filed on behalf of the petitioner, Smt. Bharti Kapoor for transfer of HMA Case No. 03 of 2017 titled Des Raj vs. Bharti Kapoor, pending adjudication before the learned Civil Judge (Senior Division), Chamba, Himachal Pradesh to the court of learned Civil Judge, Bilaspur, Himachal Pradesh.
2. Precisely, the facts of the case as emerge from the record are that marriage of petitioner and respondent was solemnized on 28.4.2015 as per Hindu rites and customs. Parties cohabited together as husband and wife cordially for some, but ultimately disputes cropped up between them resulting into institution of cross-cases by both the sides. Petitioner Bharti 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 06/11/2018 22:59:28 :::HCHP 2Kapoor filed Case No. 16 of 2016 under Report No. 282/3 of 2016 in the court of Judicial Magistrate 1st Class, Bilaspur and .
respondent filed a petition under S. 9 of Hindu Marriage Act, for restitution of conjugal rights, for the transfer of which, present petition came to be filed by the petitioner-Bharti Kapoor.
3. On 23.8.2017, learned counsel representing the respondent stated that dispute can be amicably resolved if parties are persuaded to do so and as such, matter was posted for 6.9.2017, on which two months' time was given to the parties to explore possibility their residing together. Matter came to be listed on various dates, but the efforts put by both the sides as also this court, to resolve the disputes between the parties, failed to bear any fruits and as such, on 17.4.2018, it was informed that the parties have decided to part their ways and to get the marriage dissolved by a decree of divorce by entering into a compromise on the same date i.e. 17.4.2018. As per compromise, petitioner Bharti Kapoor has conceded to get the marriage dissolved in lieu of one time alimony of `21.00 Lakh, payable in two installments i.e. `10.50 Lakh on or before 30.5.2018 and rest on or before 31.10.2018.
4. Today, i.e. 31.10.2018, during the proceedings of the case, petitioner Bharti Kapoor acknowledged receipt of `21.00 lakh in two installments i.e. `10.50 vide cheque on 31.5.2018 ::: Downloaded on - 06/11/2018 22:59:28 :::HCHP 3 and `10.50 Lakh today during the proceedings of the case before this Court. Statements of both the parties, on oath, were .
recorded as also that of the witnesses to the compromise dated 17.4.2018, which are made part of the court file. Parties by way of compromise have undertaken to withdraw all the cases instituted against each other. Parties have also filed an application under S. 13-B(1) of the Hindu Marriage Act for granting decree of divorce by mutual consent thereby dissolving their marriage alongwith compromise dated 17.4.2018, which is taken on record. Registry to assign number to the same.
5. In the aforesaid application filed under Section 13B of the Hindu Marriage Act, parties, while praying jointly for dissolution of their marriage by way of mutual consent have averred that they are living separately from each other for the last many years at their respective addresses mentioned in the memo of parties and during this period there has been no cohabitation as such, there is no relationship of husband-wife between them.
It has been further stated in the application that parties have mutually agreed for their marriage to be dissolved because there has been no cohabitation between them and there is no likelihood of their cohabiting in future and their marriage has broken beyond repair.
::: Downloaded on - 06/11/2018 22:59:28 :::HCHP 46. In view of the settlement arrived inter se parties, respondent has paid a sum of Rs.21.00 Lakh to the petitioner as .
one time settlement, whereas respondent has specifically agreed that she will not claim any maintenance in future from the petitioner and shall have no claim to the property of the petitioner. Both the parties have mutually agreed to withdraw cross-cases instituted by them against each other.
7. Having taken note of averments contained in joint application filed under Section 13B of Hindu Marriage Act, as well as statements of the parties, this court sees no impediment in accepting prayer made in the application. There is appears to no possibility of reproachment or conciliation between the parties and as such, prayer for grant of divorce by way of mutual consent deserves to be considered by this Court by converting instant petition to petition under Section 13B of Hindu Marriage Act.
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 ::: Downloaded on - 06/11/2018 22:59:28 :::HCHP 5 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 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."::: Downloaded on - 06/11/2018 22:59:28 :::HCHP 6
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 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?::: Downloaded on - 06/11/2018 22:59:28 :::HCHP 7
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.
::: Downloaded on - 06/11/2018 22:59:28 :::HCHP 817. 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 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 ::: Downloaded on - 06/11/2018 22:59:28 :::HCHP 9 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 parties resuming cohabitation and there are chances of alternative rehabilitation."
11. Consequently, in view of the detailed discussion made hereinabove, application filed under Section 13B of the Hindu Marriage Act, is allowed and in view of the peculiar facts and circumstances, as enumerated hereinabove, as well as law laid down by Hon'ble Apex Court, the marriage between the parties is ordered to be dissolved by mutual consent. Registry is directed to ::: Downloaded on - 06/11/2018 22:59:28 :::HCHP 10 draw a decree of dissolution of marriage by mutual consent accordingly. Terms and conditions contained in the compromise .
dated 17.4.2018, referred hereinabove, shall also form part of the decree
12. Needless to say, both the parties shall abide by all the terms and conditions contained in the application.
13. The instant petition alongwith the application under S. 13B(1) of the Hindu Marriage Act is disposed of in the aforesaid terms. Pending applications, if any, are also disposed of.
(Sandeep Sharma) Judge October 31, 2018 (vikrant) ::: Downloaded on - 06/11/2018 22:59:28 :::HCHP