Himachal Pradesh High Court
Smt. Anita Kumari vs State on 5 October, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 5th DAY OF OCTOBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION No. 188 of 2019
Between:
1. SMT. ANITA KUMARI,
AGED 36 YEARS,
W/O SH. PRAVEEN S. BHATIA,
PRESENTLY, VILLAGE KUFRIDHAR,
P.O. GHANAHTI, TEHSIL
AND DISTRICT SHIMLA.
2. MISS ANGEL,
AGED 5 YEARS,
D/O SH. PRAVEEN S BHATIA,
PRESENTLY, VILLAGE KUFRIDHAR,
P.O. GHANAHTI, TEHSIL
AND DISTRICT SHIMLA
THROUGH HER NATURAL
GUARDIAN I.E. MOTHER
SMT. ANITA KUMARI,
AGED 36 YEARS,
W/O SH. PRAVEEN S. BHATIA,
PRESENTLY, VILLAGE KUFRIDHAR,
P.O. GHANAHTI, TEHSIL
AND DISTRICT SHIMLA.
3. MISS ANANYA
AGED 3 YEARS,
D/O SH. PRAVEEN S BHATIA,
PRESENTLY VILLAGE KUFRIDHAR,
P.O. GHANAHTI, TEHSIL
AND DISTRICT SHIMLA
THROUGH HER NATURAL
GUARDIAN I.E. MOTHER
SMT. ANITA KUMARI,
AGED 36 YEARS,
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W/O SH. PRAVEEN S. BHATIA,
PRESENTLY, VILLAGE KUFRIDHAR,
.
P.O. GHANAHTI, TEHSIL
AND DISTRICT SHIMLA.
....PETITIONERS
(BY MR. S.C. SHARMA,
SENIOR ADVOCATE WITH
MR.ARVIND NEGI, ADVOCATE)
AND
DR. PRAVEEN BHATIA,
S/O SH. GOVERDHAN DASS,
R/O CLUSTER HEALTH CENTRE DHAMMI,
TEHSIL AND DISTRICT SHIMLA
HIMACHAL PRADESH, PRESENTLY
SERVING AS DOCTOR IN IGMC SHIMLA
....RESPONDENT
(BY MR. RAMESH SHARMA,
ADVOCATE)
CIVIL MISC. PETITION MAIN (ORIGINAL) No.232 of 2021
SH. PRAVEEN S BHATIA,
AGED 54 YEARS, S/O SH.
GOVERDHAN DASS, R/O
CLUSTER JASWAL BHAWAN
NORTH OAK SANJAULI
SHIMLA-6, TEHSIL AND
DISTRICT SHIMLA-171006.
....PETITIONER
(BY MR. RAMESH SHARMA,
ADVOCATE)
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3
AND
.
SMT ANITA KUMARI,
AGED ABOUT 39 YEARS,
W/O SH. PRAVEEN S.
BHATIA, PRSENTLY
RESIDING AT VILLAGE
KUFRI DHAR, P.O.
GHANAHATTI, TEHSIL
AND DISTRICT SHIMLA,
H.P.
....RESPONDENTS
(MR. S.C. SHARMA, SENIOR
ADVOCATE WITH MR.
ARVIND NEGI, ADVOCATE)
Whether approved for reporting?. Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
Instant criminal revision petition filed under Sections 397/401 of Cr.PC, lays challenge to order dated 24.10.2018, passed by the learned 2018/17, affirming the order dated 30.6.2016, passed by the learned JMFC Shimla in case No.57A-4 of 2018, titled Anita v. Praveen and Ors, whereby an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) (in short "the Act") came to be allowed.
::: Downloaded on - 31/01/2022 23:10:51 :::CIS 42. Precisely, the facts of the case, as emerge from the record, are .
that marriage inter-se petitioner No.1 and respondent was solemnized on 20/21.6.2010 as per Sikh/Hindu Rites and Customs and out of their wedlock, two daughters are born i.e. petitioners No. 2 and 3. Since certain differences cropped up inter-se petitioner No.1 and the respondent, they were unable to live together for quite long and since 30.9.2015, they have been living separately. Petitioners No. 2 and 3 i.e. daughters of the petitioner No.1 and the respondent are presently residing with the respondent pursuant to order passed by the learned Principal Judge, Family Court, since 13.7.2019. Petitioner No.1 filed an application under Sections 12 and 23 of the Act, praying therein to grant interim maintenance as well as residential accommodation in the competent court of law. Learned JMIC-6 Shimla, vide order dated 30.6.2016, allowed the application and directed the respondent-husband to pay sum of Rs.
6,000/- per month to petitioner-wife and Rs. 2,000/- each to petitioners No. 2 and 3-daughters as interim maintenance.
3. Being aggrieved and dissatisfied with aforesaid order passed by the learned court below, petitioners herein filed appeal in the court of learned Additional Sessions Judge, Shimla-1, which came to be dismissed.
In the aforesaid background, petitioners have approached this Court in the ::: Downloaded on - 31/01/2022 23:10:51 :::CIS 5 instant proceedings, praying therein for enhancement of interim .
maintenance awarded by the courts below.
4. Having taken note of the nature of controversy involved inter-se parties, this Court before deciding the case at hand on its merits, deemed it necessary to make an attempt for amicable settlement inter-se parties and as such, summoned both the parties to the court. Pursuant to order dated 11.8.2021, parties came present before this Court on 9.9.2021 and on that day, certain offers were exchanged inter-se parties and ultimately, on 28.9.2021, learned counsel for the parties, on instructions of their respective clients, informed this court that parties have resolved to settle their dispute amicably, inter-se them, whereby both petitioner No.1 and the respondent have filed petition under Section 13 B of the Hindu Marriage Act, for dissolution of their marriage by way of mutual consent i.e. CMPMO No. 232 of 2021.
5. As per agreement, respondent-husband agreed to pay sum of Rs. 30.00 lac to the petitioner-wife in three equal installments and he also agreed to give visitation rights to the petitioner to meet her minor daughters as per schedule given in the compromise arrived inter-se parties. Today, during the proceedings of the case, a joint petition under Section 13 B of the Hindu Marriage Act, has been filed by the learned counsel for the parties. As per settlement, sum of Rs. 30 lac agreed to be paid by the ::: Downloaded on - 31/01/2022 23:10:51 :::CIS 6 respondent husband towards permanent alimony to the petitioner shall be .
paid in three equal installments by way of three cheques No. 462729 dated 5.10.2021, 462730 dated 15.11.2021 and 462732 dated 31.12.2021, amounting to Rs. 10.00 lach each, payable at SBI IGMC, Shimla. All the three cheques as detailed herein above have been handed over to petitioner No.1-wife in the open court.
6. As per agreement, personal belongings as well as Istri Dhan have been settled amicably and as of today, nothing remains to be given by the respondent husband to the petitioner wife. They have also agreed that after passing of decree of divorce by way of mutual consent, petitioner-wife shall not be entitled for any inheritance/succession, nomination to the estate/movable and immovable property of the respondent in any manner.
They have also undertaken to withdraw all the cross cases filed against each other, be it civil or criminal. Besides above, parties have also agreed that custody of the children shall remain with the respondent-husband and petitioner No.1-wife shall have visitation rights as per schedule detailed in the compromise.
7. Learned counsel for the parties, on instructions of their respective clients, jointly stated that in view of the aforesaid amicable settlement arrived inter-se parties, nothing remains to be adjudicated in the present petition and same may be disposed of accordingly.
::: Downloaded on - 31/01/2022 23:10:51 :::CIS 78. Consequently, in view of the detailed discussion made herein .
above as well as compromise arrived inter-se parties, orders dated 24.10.2018 and 30.6.2016, passed by the learned courts below are quashed and set-aside. Instant criminal revision petition is disposed of alongwith pending applications, if any.
CIVIL MISC. PETITION MAIN (ORIGINAL) No.232 of 2021 ORDER
9. By way of instant petition filed under Section 13 B (I) of the Hindu Marriage Act, joint prayer has been made by the parties for dissolution of their marriage, by way of mutual consent on account of their amicable settlement arrived inter-se them in Cr.R No. 188 of 2019. Since facts in detail with regard to circumstances, which led to separation of parties to the lis and subsequent amicable settlement, stand mentioned/recorded in the earlier part of the judgment by this court in Cr.R. No. 188 of 2019, there appears to be no necessity for this court to narrate the same again.
10. Perusal of averments contained in the petition reveals that though marriage inter-se petitioner No.1 and respondent was solemnized on 21.6.2010 as per Sikh/Hindu Rites and Customs, but on account of ::: Downloaded on - 31/01/2022 23:10:51 :::CIS 8 certain differences, they have been living separately since 30.9.2015. Two .
daughters have also born from their wedlock, who are at present living with petitioner No.1-Praveen S. Bhatia. Since parties to the lis have been living separately for more than five years and during this period, there has been no cohabitation inter-se them and as such, as of today, there is no relationship of husband and wife between them. It has been further averred in the application that parties have mutually agreed to get their marriage dissolved by way of mutual consent because there is no likelihood of their cohabiting in future and their marriage has broken beyond repair.
It has been further averred in the petition that they have entered into compromise, terms and conditions whereof, have been produced in the petition and as per settlement, three cheques amounting to Rs. 10.00 lac each (total Rs. 30.00 lac) as permanent alimony, have been handed over to Ms. Anita petitioner No.2 by petitioner No.1 Praveen S. Bhatia. As per the agreement, both the parties have also decided to withdraw the cases filed by them against each other as well as other family members. Since there is no possibility of rapprochement inter-se parties to the lis and they themselves have filed joint petition for dissolution of marriage by way of mutual consent as is evident from the averments contained in the petition as well as affidavits annexed therewith, prayer made on their behalf deserves to be considered.
::: Downloaded on - 31/01/2022 23:10:51 :::CIS 911. Both the parties state on oath that they have come before this .
Court with their own volition and without there being external pressure to state that they have entered into amicable settlement, whereby they both have resolved to get their marriage dissolved by way of mutual consent by filing petition under Section 13 B of the Hindu Marriage Act. They further state that as per amicable settlement arrived inter-se parties, sum of Rs.
30.00 lac by way of cheques, has been paid to petitioner No.1 and thereafter they shall have no claim of any kind against each other. Both the parties further state before this court that they would abide by the terms and conditions contained in the compromise deed annexed with the petition. Respondent Dr. Praveen S Bhatia, undertakes before this court that in case cheques issued by him in favour of the petitioner-wife are dishonored, decree of divorce granted by this court in the instant proceedings, shall not be binding upon the petitioner and till 30.12.2021, he will not solemnize another marriage. Statements of both the parties are taken on record. They further state that compromise deed bears their signatures and they do not dispute the same. They have also undertaken to withdraw all the cases against each other, be it criminal or civil, pending before any competent court of law forthwith.
12. Having taken note of the facts and circumstances of the case as have been discussed above as well as averments contained in petition ::: Downloaded on - 31/01/2022 23:10:51 :::CIS 10 filed under Section 13 B of the Hindu Marriage Act and statements given by .
both the parties on oath before this court, this Court finds no difficulty in accepting the prayer made in the petition, however, it would be in the interest of both the parties in case aforesaid prayer is considered and decided by the competent court of law i.e. Family Court Shimla.
13. Learned counsel for the parties state that though they have no objection incase present petition is transferred to the family Court below for passing decree of divorce by way of mutual consent, but statutory cooling period of six months as envisaged under the Act for grant of divorce by way of mutual consent may be waived of, especially, when there is no possibility of rapprochement inter-se parties and their marriage has broken beyond repair.
14. In view of the facts enumerated herein above, this court deems it fit to transfer the instant petition to the family Court Shimla with direction to pass decree of divorce by way of mutual consent, taking note of the terms and conditions of the compromise as detailed in the petition as well as compromise deed annexed therewith and the statements made by both the parties on oath before this court. Ordered accordingly.
15. Having taken note of the fact that both the parties are living separately, statutory cooling period of six months for grant of divorce by way of mutual consent can by waived by this Court. It would be apt to take ::: Downloaded on - 31/01/2022 23:10:51 :::CIS 11 note of judgment dated 5.10.2020, passed by this Court in Cr.Revision .
Nos. 19 and 20 of 2019 a/w CMPMO No 391 of 2020, titled Vivek Paul v. Anupama, relevant paras whereof are reproduced as under:
14 ..................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 rsame 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."
15. 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."
16. 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 11 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. ::: Downloaded on - 31/01/2022 23:10:51 :::CIS 12 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 r questions:
i) How long parties have been married?
ii) How long litigation is pending?
iii) How long they have been staying apart?
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 ::: Downloaded on - 31/01/2022 23:10:51 :::CIS 13 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.
17. 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. as 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 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 ::: Downloaded on - 31/01/2022 23:10:51 :::CIS 14 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."
16. Consequently, in view of the detailed discussion made hereinabove as well as law relied upon present petition is ordered to be transferred to the family court, Shimla, alongwith complete record i.e. judgment in Cr.Revision No.188 of 2019 alongwith statements made on oath by the parties, with direction to decide the same in terms of direction contained in aforesaid paras of the judgment. Learned counsel for the parties undertake to cause presence of their respective clients before the court below on 20.10.2021, enabling it to pass decree of divorce by way of mutual consent in terms of aforesaid observations made in the earlier part of the judgment, waiving statutory cooling period of six months. In the aforesaid terms, present petition stands disposed of so also pending applications.
5th October, 2021 (Sandeep Sharma),
(manjit) Judge
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