Madhya Pradesh High Court
Smt. Anamika Shrivastava vs Vivek Shrivastava on 19 September, 2007
Equivalent citations: 2007(4)MPHT374
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. Challenge in this petition under Article 227 of the Constitution is made to order dated 11-9-2007 Annexure P-6 passed by the Family Court, Gwalior, refusing to take up an application filed by the parties under Section 13B of the Hindu Marriage Act for consideration on the ground that the period of six months as contemplated under the said section is not over.
2. Proceedings before the Family Court, Gwalior have been initiated by the parties concerned by filing an application under Section 13B of the Hindu Marriage Act and they have sought dissolution of marriage on various grounds by mutual consent. A prayer was made for consideration of this application and taking it up for hearing, this prayer has been rejected and by the impugned order the case is adjourned for 12-3-2008 on the ground that orders on the application cannot be passed without waiting for a period of six months and the decree of mutual consent can be passed only after the aforesaid period of six months is over. When the matter was taken up for hearing 17-9-07, both the petitioner and respondent were present and it was stated by them that the application has been jointly filed by them and they want dissolution of marriage. It was stated that their marriage has broken down, there is no chance of reconciliation and therefore, the marriage be dissolved. However, the matter was adjourned for today for considering the legal question as to whether the marriage can be directed to be dissolved by way of mutual consent under Section 13B of the Hindu Marriage Act even before the period of six months contemplated under Sub-section (2) thereof is over.
3. In pursuance to the observation made by this Court on 17-9-07 Shri P.K. Chaturvedi, learned Counsel for petitioner has filed a application being I.A. No. 14698/2007, bringing on record affidavit of petitioner Smt. Anamika Shrivastava and respondent Vivek Shrivastava along with application filed on 19-9-07 under Section 13(B) of the Hindu Marriage Act, for the first time before this Court seeking dissolution of marriage by mutual consent in this proceeding itself. Shri P.K. Chaturvedi, learned Counsel for petitioner further invites my attention to a judgment of Andhra Pradesh High Court in the case of Grandhi Venkata Chitti Abbai v. Grandhi Padma Lakshmi 1999 Matrimonial Law Reporter 324 and Anr. judgment of Gujrat High Court in case of Brijal Chandreshbhai Bhatt v. Chandreshbhai Sahdevbhai Bhatt 1999 Matrimonial Law Reporter 575, to indicate that the waiting period of six months as indicated under Section 13B of the Hindu Marriage Act is not statutory and mandatory condition, in a given case where the parties pray for dissolution of the marriage and when the marriage has broken down and there is no possibility of any reconciliation, decree of dissolution can be passed under Section 13B of the Hindu Marriage Act even before the period of six months is over.
4. Having heard learned Counsel for petitioner and on going through the facts and circumstances of the case, prima facie it is seen that parties are agitating the matter before various forums, proceedings under Section 125 (3), Cr.PC and Section 498A, IPC and various other cases are pending between the parties and both the parties are living separately for more than about 31/2 years, that being so prima facie it seems that marriage has broken down and there is no possibility of reconciliation and parties have applied for dissolution of the marriage by mutual consent, in view of the fact that it is not possible for them to live together and therefore, only question which requires consideration now is as to whether the learned Family Court was right in postponing decision on the application filed under Section 13B of the Hindu Marriage Act to be decided after six months or application should be taken up for disposal immediately and the period of six month as contemplated under Section 13B of the Hindu Marriage Act can be waived. This question has been considered by Andhra Pradesh High Court in the case of Grandhi Venkata ChittiAbbai (supra), and also by Gujrat High Court in the case of Brijal Chandreshbhai Bhatt, as relied by Shri P.K. Chaturvedi, it has been held in the aforesaid cases that if no possibility of revival of the marriage is seems then no useful purpose would be served by directing the parties to continue the agony for six more months, it has been held that period of six months can be waived. Apart from the aforesaid judgment relied upon Shri P.K. Chaturvedi, learned Counsel for the petitioner the aforesaid principles have been followed in various judgments and the consistent view of various High Courts are that in a given case, discretion can be exercised for dissolution of marriage even before six months if the situation so warrants. In this regard following judgments may be taken note of:
(I) Mihir Narayan Mohanty v. Sadyalaxmi Patnaik AIR 1991 NOC 92 (Orissa).
(II) Dhanjit Vadra v. Smt. Beena Vadra AIR 1990 Delhi 146.
In these cases the High Courts have held that the period contemplated under Section 13B(2) is a matter of formality decree can be given even if warranted even before the prescribed period of six months. Similar view are again taken by the Orissa High Court in the case of Smt. Kanchan Mohanty v. Kulamani Mohanty , and it is held that the period of six months can be waived in a given case. A Division Bench of Andhra Pradesh High Court in the case of K. Omprakash v. K. Nalini has allowed the application for divorce by mutual consent before the statutory period of six months. The Gujrat High Court also in the case of Dr. Dhiran Harilal Garasia v. N. Mansu AIR 1988 Gujrat 159, has held that decree for divorce by mutual consent can be passed before expiry of the period of six months, from the date of presentation of petition when the Court is satisfied and the same is warranted. Finally a Division Bench of the Karnataka High Court in the case of Smt. Roopa Reddy v. Prabhakar Reddy AIR 1994 Karnataka 12 has considered this question and has held that the waiting period of six months to 18 months as indicated in Sub-section (2) of Section 13B is directory in nature and if both the parties understand the effect of dissolution and refuse to reconcile, the joint application made by parties can be decided even without awaiting for the statutory period of six months. A Division Bench of Karnataka High Court in this case has observed as under:
Section 13B(2) requires that Court should not pass decree for divorce before six months of time lapses and after 18 months of time passes from the date of filing of such a petition for divorce by mutual consent. For considering whether this requirement under Section 13B is mandatory or directory the words used in the Section shall have to be read in the context in which the liberalised 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 Section 13B(2) is to liberalise and o 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 two discordant spouse to get quick separation and to lead their remaining life without any agony. If Section 13B(2) is read as mandatory, the very purpose of liberalising the policy of decree of divorce by mutual consent will be frustrated. Thus, Section 13B (2), though it is mandatory inform is directory in substance.
(Emphasis supplied)
5. Keeping in view the consistent view expressed by various High Courts in the cases as indicated here in above, I am of the considered view that the learned Family Court in the present case has committed error in not deciding the application filed by the petitioner under Section 13B and postponing decision of the said application. In the facts and circumstances of the case prima facie it seems that the parties have failed to reconcile and the marriage has broken down beyond any repair, that being so interest of justice requires that application should be considered immediately and a decision taken on the same at an early date. As the principles laid down in the various judgments indicate that the period prescribed under Section 13B(2) is directory in nature, in a given case the application can be decided even without awaiting for the period of six months, that being so the impugned order passed by the learned Family Court is liable to be quashed, matter should be remanded back to the Family Court for fresh consideration with a direction to decide the same without awaiting for the statutory period of six months. Even though Shri P.K. Chaturvedi, learned Counsel for the petitioner prays for dissolution of marriage in the present proceeding by passing of order of dissolution in this petition. I am of the considered view that the same cannot to be passed in this petition this is to be done by the Family Court where the proceeding are pending that being so the matter has to be remanded back to the Family Court.
6. Accordingly this petition is allowed. The order impugned fixing the date of hearing on the application filed under Section 13B as 12-3-2008 is quashed. Matter is remanded back to the Family Court with a direction to decide the application filed by the petitioner under Section 13B in accordance with law forthwith. As prayed for by parties they are permitted to appear before the learned Family Court on 24th of September, 2007 for further proceeding.
7. Accordingly petition is allowed and disposed of with the aforesaid direction.