Calcutta High Court
Rajesh Lakhotia vs Smita Lakhotia on 18 April, 2001
Equivalent citations: (2001)2CALLT311(HC), 2001(2)CHN697, II(2001)DMC624
Author: A. Kabir
Bench: Altamas Kabir
JUDGMENT A. Kabir, J.
1. This appeal was preferred against the judgment and order dated 30th July, 1999, passed by the learned Judge, Family Court, Calcutta, in Matrimonial Petition No. 5 of 1996, dismissing the appellants' petition under section 13 of the Hindu Marriage Act, 1955 for dissolution of his marriage with the respondent. While the appeal was pending hearing, the parties jointly filed an application under section 13B of the aforesaid Act praying, inter alia, that the appeal be converted into a petition for divorce by mutual consent under section 13B of the above Act and that the waiting period of six months mentioned in subsection (2) thereof be waived and a decree of divorce be immediately passed dissolving the marriage between the parties after taking on record the memorandum of compromise dated 15th March, 2001, jointly executed by them.
2. Appearing for the appellant, Mr. Bhaskar Sen submitted that the consistent view of the different High Courts and the Hon'ble Supreme Court was that a proceeding under section 13 of the Hindu Marriage Act, 1955, could be converted into a proceeding under section 13B of the said Act at the appellate stage and even the waiting period of six months after filing of the petition for a decree of divorce by mutual consent mentioned in subsection (2) of section 13B was not mandatory but only directory and could, therefore, be waived.
3. Mr. Sen urged that there could, therefore, be no bar to a decree for divorce being immediately granted under section 13B of the Hindu Marriage Act. 1955, on the basis of the petition jointly filed by the parties without waiting for the period of six months mentioned in section 13B(2) of the said Act.
4. In support of his submission regarding conversion of the matrimonial proceedings from one under section 13 of the Hindu Marriage Act, 1955, to one under section 13B of the said Act, Mr. Sen firstly referred to a decision of the Hon'ble Supreme Court in the case of Shashi Garg (Smt.) v. Arun Garg, , wherein a petition for dissolution of marriage under section 13(1)(a) of the Hindu Marriage Act, 1955, was allowed by the Hon'ble Supreme Court to be converted into a proceeding under section 13B of the above Act on being satisfied that dissolution of marriage by mutual consent could be granted on the basis of an agreement arrived at between the parties on account of the fact that the marriage was stated to be dead, both emotionally and practically. The Hon'ble Supreme Court held, inter alia, that there was no impediment in adopting such a course of action with a view to do complete justice between the parties and to avoid unnecessary further litigation.
5. The same view appears to have been taken by the Hon'ble Supreme Court in the case of Radha v. Mohinder Kumar, reported in. , where upon a request jointly made by the parties before the Supreme Court in an appeal against a decree of annulment of marriage, the same was allowed to be converted into a proceeding under section 13B of the Hindu Marriage Act, 1955 and the order of annulment of marriage was substituted by an order dissolving the marriage by a decree of divorce upon mutual consent.
6. Reference was also made to two other decisions of the Hon'ble Supreme Court, namely, 1) Mrs. Payal Jindal v. A.K. Jindal 1995 supp. 4 SCC 411 and 2) Sandhya Rant v. Kalyanram Narayanan 1994 supp. 2 SCC 588, where the same principle was followed.
7. Mr. Sen urged that there could, therefore, be no bar in the instant proceeding to entertain the joint petition of compromise filed between the parties and to convert the proceedings into one under section 13B of the Hindu Marriage Act.
8. On the next question regarding waiver of the six-month waiting period indicated in sub-section (2) of section 13B of the Hindu Marriage Act, Mr. Sen firstly referred to a Bench decision of the Andhra Pradesh High Court in the case of K. Omprakash v. K. Nalini, , wherein it was held that section 13B(2) should be read as directory only. The learned Court further observed that the provisions contained in sub-section 13B(2) cautions the Court of its duty to try and save the marriage, but when the Court is fully satisfied that in the interest of justice the marriage tie should be dissolved immediately, the powers of the Court could not be fettered in granting an instant declaration of divorce. It was also observed that the time period fixed by section 13B(2) did not apply to a proceeding before the appellate Court.
9. Mr. Sen pointed out that the same view had been taken by the Karnataka High Court in the case of Smt. Roopa Reddy v. Prabhakar Reddy, and by the Delhi High Court in the case of Dhanjit Vadra v. Smt. Beena Vadra, .
10. Mr. Sen urged that having regard to the views expressed in the above decisions, there was no impediment to the Court in passing an order for immediate dissolution of the marriage between the parties on the basis of a petition of compromise jointly filed by them by converting the proceedings into one under section 13B of the Hindu Marriage Act, 1955.
11. Mr. Sen's submissions were reiterated by Mr. Paritosh Sinha appearing for the respondent.
12. Having regard to the views expressed by the Hon'ble Supreme Court in Shashi Garg's case (supra) and the other cases referred to hereinabove, we see no difficulty in converting the instant proceedings, even at the appellate stage, from one under section 13 of the Hindu Marriage Act, 1955 to one under section 13B of the said Act, and we direct accordingly.
13. At to the petition of compromise filed by the parties jointly we are in agreement that the time period indicated in section 13B(2) of the aforesaid Act, will not apply at the appellate stage having regard to the fact that the waiting period as contemplated has already been undergone before the trial Court where it was evident that the marriage had broken down irretrievably and there was no possibility of the parties once again coming together to live as husband and wife. The view recently expressed by the Hon'ble Supreme Court in the case of Smt. Sneh Prabha v. Ravinder Kumar seems to indicate that when a marriage has broken down irretrievably and there is no possibility of the marriage being salvaged, it would be better to dissolve the marriage immediately without prolonging the agony of both the parties.
14. In the present case the respondent wife appears to have left her matrimonial home in November. 1995, and since then she has been living separately from her husband and what is also significant is that the two children born of the marriage and who are still of tender age, have been residing with their father since November, 1995, and not with their mother, as would normally be expected. The suit for dissolution of the marriage was filed soon thereafter in 1996 and was dismissed on 30th July, 1999 and the present appeal was filed on 1st September, 1999.
15. About six years have passed since the respondent wife left her matrimonial home and has stayed apart from her husband and there has been no reconciliation between them. As stated in the joint petition of compromise there has been no co-habitation between the parties since 18th November. 1995 when the respondent wife left her matrimonial home. Both the parties have realised that it is no longer possible for them to live together as husband and wife and accordingly they have filed a joint petition of compromise agreeing to a decree of divorce by mutual consent.
16. We have spoken to both the parties separately and they have both expressed their desire to a decree for divorce by mutual consent on the terms and conditions agreed upon, which both of them have fully under stood.
17. In such circumstances, we allow the application under section 13B of the Hindu Marriage Act, 1955, filed by the parties jointly and direct that a decree for divorce be passed dissolving the marriage between the parties on the basis of the Memorandum of Compromise dated 15th March, 2001, which do form part of the decree.
The appeal is disposed of accordingly.
There will be no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities.
G.C. De, J.
18. I agree.
19. Appeal disposed of