Delhi High Court
Ved Bhushan Sharma vs Alka Sharma on 22 March, 2011
Author: G. S. Sistani
Bench: G.S.Sistani
35.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) 310/2011
% Judgment Delivered on: 22.03.2011
VED BHUSHAN SHARMA ..... Petitioner
Through: Ms. Kittu Bajaj, Adv.
Versus
ALKA SHARMA ..... Respondent
Through: Mr. R.P. Pahwa and Ms. Soniyaa Pahwa, Advs.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether the Reporters of local papers may be allowed to see
the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
G.S.SISTANI, J. (ORAL)
1. The present petition is directed against the order dated 04.10.2010 passed by learned additional district judge dismissing the applications filed by the parties under section 14 of the Hindu Marriage Act, 1955.
2. Counsel for the parties submit that the present petition be treated as a joint petition on behalf of both the parties with a prayer to waive the statutory period of separation of one year.
3. The brief facts that are necessary to be noticed for the disposal of the present petition are that the marriage between the petitioner, presently 38 years of age, and the respondent, presently, 41 years of age, was solemnised on 08.07.2010 according to Hindu customs, rites and ceremonies. However, soon after their marriage, temperamental differences arose and the parties were not able to live together even for a few days after the marriage. Parties finally CM(M)No.310/2011 Page 1 of 8 separated on 15.08.2010. It is a common case of both the parties that the marriage has not been consummated and there are no children born from the wedlock.
4. Counsel for the parties submit that this is a fit case to waive the statutory period of one year as despite various efforts having been made by the parties themselves, their friends, relatives and well- wishers, no reconciliation has been possible and the parties contend that the marriage has broken down irretrievably. As all efforts of reconciliation failed, the parties have also signed a settlement deed dated 14.09.2010 whereby they have settled all their disputes in regard to and incidental to marriage including claims regarding stridhan, present and future maintenance as well as permanent alimony and have also decided to seek divorce by mutual consent. It would be pertinent to mention some of the terms of the settlement which are as under:
Petitioner has agreed to pay a sum of Rs. 7.5 lacs towards full and final settlement of all claims in regard to maintenance and permanent alimony.
Neither of the party shall institute any civil, criminal or matrimonial proceedings of any kind against each other or their relatives, family members except a joint petition for divorce by mutual consent The parties shall withdraw all complaints, cases etc lodged against each other or their family members After the grant of divorce by mutual consent, neither of the parties shall say or do anything derogatory or defamatory against each other or their family members CM(M)No.310/2011 Page 2 of 8 The parties have further undertaken to cooperate with each other in getting their marriage dissolved by mutual consent.
5. It is also submitted by the parties that as per the settlement deed dated 14.09.2010 entered into between the parties, the parties have settled all disputes relating to as well as incidental to marriage including the financial aspects in regard to stridhan, maintenance and permanent alimony and that there is no possibility of reconciliation between the parties or of their staying together. It is further put forth that the parties have neither met each other nor communicated with each other in any manner since the day of their separation except in the course of signing the settlement deed entered into between the parties and till date, there has been no change in the decision of the parties to part ways.
6. Pursuant to the said settlement dated 14.09.2010, the parties filed a petition under section 13B of the Hindu Marriage Act for grant of divorce by mutual consent alongwith an applications under section 14 of the Hindu Marriage Act for waiver of the unexpired period out of the statutory period of one year of separation. The said applications having been dismissed by the learned trial court has led to the filing of the present petition.
7. Counsel for parties have strongly urged before this court that another ground to waive the statutory period of one year is that the petitioner is suffering from cerebral palsy and the respondent is physically handicapped having been affected by polio in her left leg and parents of both the parties are keen to settle the petitioner and respondent during their lifetime.
CM(M)No.310/2011 Page 3 of 8
8. The counsel for both the parties have further submitted that taking into consideration the advancing age of both the parties and their medical conditions, the parents of both the parties are anxious to settle the petitioner as well as the respondent without any further loss of time. It is further contended that in case the valuable time is wasted, the parties may not be able to find a suitable match, which is extremely important in the case of the parties as it would be in their interest to have a life partner. It is next submitted that the parties have a right to live with dignity and equality as other persons and thus, it would be in the interest of justice that the period of one year is waived in the present case. It is also submitted that with the passing time, the settlement deed may also lose its sanctity.
9. It is further contended that there are serious apprehensions that if the parties are compelled to live together, their differences would only sharpen and serious bickering between the parties would only lead to allegations, counter-allegations and unhappy litigations between the parties.
10. It is urged before this court that the learned trial court has wrongly placed reliance on Anil Kumar Jain v. Maya Jain reported at (2009)10 SCC 415 as the facts of that case are totally different from the present case and the verdict is on those facts only. It is contended that the verdict in the aforementioned case was only on two aspects; firstly with regard to the period of six months and the other with regard to withdrawal of consent by one of the parties before the decree is passed.
11. The counsel for the parties have placed reliance on Tarun Kumar Vaish v. Ms. Meenakshi Vaish reported in 119(2005) DLT 567 CM(M)No.310/2011 Page 4 of 8 wherein a single judge of this Court allowed the application under section 14 of the Hindu Marriage Act and more particularly at para 7 which reads as under:
"7. This Court also in a judgment in FAO 756 of 2003 in Pooja Gupta and Another v. Nil in respect of a petition under Section 13 B(1) of the Act had held as follows:
"The above statement of objects and reasons though made in the context of parity with Section 28 of Special Marriage Act also clearly indicates that the legislative intent was expeditious disposal of divorces by mutual consent. In my view as long as the Court is satisfied as an essential reason for exemption for filing a divorce by mutual consent prior to expiry of one year after the marriage that the plea for mutual consent is not under coercion/intimidation or undue influence and there are no chances of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent, the continuance of such a marriage is bound to cause undue hardship to the spouses. The other relevant considerations which may be considered for granting the exemption from passage of one year before filing a petition for divorce by mutual consent are:
(a) the maturity and the comprehension of the spouses;
(b) absence of coercion/intimidation/undue influence;
(c) the duration of the marriage sought to be dissolved;
(d) absence of any possibility of reconciliation;
(e) lack of frivolity;
(f) lack of misrepresentation or concealment
(g) the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties."
12. I have heard counsel for the parties. Section 14 of the Hindu Marriage Act reads as under:
"14. No petition for divorce to be presented within one year of marriage: (1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf , allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the court at the hearing of CM(M)No.310/2011 Page 5 of 8 the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiration of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year."
13. Section 14 of The Hindu Marriage Act is grounded on public policy as marriage is the very foundation of the civil society. The aim and object of the section is to deter and discourage people from taking a hasty recourse to legal proceedings by the spouses without giving proper and adequate time to adjust themselves and test their marriage. Though, time and again, the courts in the country have repeatedly held that the object of the Hindu Marriage Act is to preserve the sanctity of marriage and that the courts are duty bound to make every attempt to preserve the institution of marriage; the courts have also taken note of the fact that matrimonial disputes cannot be run on universal statutes and the courts must deal with them with a human touch.
14. While laying down lapse of a statutory period of one year as a pre-
requisite for presentation of a petition for a decree of divorce, the legislature in its wisdom has given ample power under section 14 of the Hindu Marriage Act to the High Courts to waive this one year period in cases of exceptional hardship. It is contended by counsel for both the parties that the present case would fall under CM(M)No.310/2011 Page 6 of 8 "exceptional hardship" having regard to the age and medical condition of both the parties.
15. Though the courts have been reluctant to waive the statutory period of one year as this is the period which enables the parties to discover any possibilities of reconciliation between them; taking into consideration the peculiar fact and circumstances of the present case, I find the present case to be a fit case for waiver of the mandatory period of one year. Both the parties are present in court, who have reiterated the stand taken by the counsel. I am satisfied that the delay in the decree of divorce would cause undue hardship to both the parties. I am also satisfied that the decision of both the parties to dissolve their marriage has not been taken in haste nor has there been any external influence of parents or relatives. In view of the settlement deed dated 14.09.2010 entered into between both the parties and the fact that the parties have not met each other nor have had any communication with each other since the day of their separation, it appears that reconciliation between the parties is an impossibility and that the marriage is emotionally dead. The marriage between the petitioner and the respondent is nothing more than a legal fiction and no purpose would be served in supporting it with a legal tie.
16. The petitioner husband is presently 38 years of age and is suffering from cerebral palsy whereas the respondent wife is presently 41 years of age and is affected by polio. With the advancing age of the parties and having regard to their medical conditions, parents of both the parties are anxious to settle them during their lifetime. Any undue delay in grant of divorce would have a dampening effect on their personalities and would have a deleterious effect on the CM(M)No.310/2011 Page 7 of 8 prospects of re-marriage of the parties. This is another factor which has prevailed upon the court to waive the period of one year.
17. In view of the observations made above, the present petition is allowed and the period of one year is waived.
18. DASTI to counsel for the parties.
March 22, 2011 G.S. SISTANI, J.
'ssn'
CM(M)No.310/2011 Page 8 of 8