Himachal Pradesh High Court
Himanshu Nagpal vs Palak on 13 November, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(HMA) No. 432 of 2018 Decided on: November 13, 2018 .
________________________________________________________________ Himanshu Nagpal .. Appellant Versus Palak ..........Respondent ________________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 yes.
________________________________________________________________ For the appellant : Mr. K.D. Sood, Senior Advocate with Mr. Sanjeev Sood, Advocate.
For the respondent :
Mr. Ramakant Sharma, Senior
Advocate with Ms. Devyani
r Sharma, Advocate.
________________________________________________________________ Sandeep Sharma, Judge:(oral) By way of present appeal filed under S. 28 of the Hindu Marriage Act (hereinafter, 'Act'), challenge has been laid to order dated 22.5.2018 passed by the learned District Judge, Kangra at Dharamshala in HMA Case No. 09/III/2018, whereby joint petition having been filed on behalf of the appellant and respondent, under S. 13B(2) of the Act, for dissolution of marriage by a decree of divorce with mutual consent, came to be dismissed.
2. Briefly stated the facts, as emerge from the record are that the marriage between the parties was solemnized on 14.10.2016 at Budhamal Castle, Palampur, Tehsil Palampur, 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 2District Kangra, H.P., as per Hindu rites and customs but they were not able to live together for long on account of certain .
differences and as such, they, of their own volition and without there being any undue pressure, filed a joint petition under S. 13B(2) of the Act, praying therein for dissolution of their marriage by way of decree of divorce with mutual consent. One of the parties i.e. appellant-husband, Himanshu Nagpal, who resides abroad, executed a Special Power of Attorney authorizing his father, Shri Surya Prakash Nagpal, to move a joint petition under S. 13B of the Act, alongwith his wife, Palak Nagpal before the learned Court below, however, the fact remains that the learned Court below rejected the petition vide impugned order dated 22.5.2018, on the ground of maintainability. Learned District Judge concluded that since the petition on behalf of appellant was signed by his father, being his attorney, same could not be accepted. In the aforesaid background, parties have approached this court by way of instant appeal, laying therein challenge to the aforesaid order passed by the learned District Judge, praying therein for dissolution of their marriage by way of decree of divorce with mutual consent, after setting aside the impugned order passed by the court below.
3. Before adverting to the factual matrix of the case, it may be noticed that on the last date of hearing i.e. 6.11.2018, ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 3 respondent-Palak, who had come present with her father, categorically stated before this court that she has no objection in .
case prayer made in the petition is accepted and marriage inter se parties is ordered to be dissolved with mutual consent, however, she had stated that before passing a decree of divorce, amount agreed to be paid to her in terms of compromise, may be paid to her. On the last date of hearing, parties also placed on record, settlement deed, wherein appellant has agreed to pay a sum of `8.00 Lakh as permanent alimony to his wife, Palak.
Similarly, respondent also stated that she has received all the dowry articles as per agreed terms and she has no claim against the appellant and she shall withdraw all the cases lodged by her against the appellant and/or his family members.
4. Today, Ms. Palak (respondent), on oath, stated before this court that she has received a sum of `8.00 Lakh as per agreed terms towards full and final settlement and now she has no claim against the appellant. She further stated that she shall be withdrawing all the case pending in various courts of law, against the appellant as well as his family members, within a period of one week. She categorically stated before this court that she has no objection in case prayer having been made in the instant appeal, which bears her signatures, is accepted and marriage inter se parties is ordered to be dissolved by way of ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 4 decree of divorce with mutual consent. Her statement is taken on record. The settlement deed is also made part of the record.
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5. Now, the question, which remains to be determined in the instant proceedings by this court is, whether petition under S. 13B(2) under the signatures of father of the appellant, being his attorney, is maintainable or not? Undisputedly, petition under S. 13B on behalf of the appellant has been signed by his father being his attorney, whereas, respondent has signed the petition herself. Special Power of Attorney placed on record (available at page-23 of the paper-book), which, otherwise, has not been disputed by the respondent, clearly suggests that the appellant has authorised his father to sign the petition under S.13B of the Act on his behalf for grant of divorce by mutual consent from his wife, Ms. Palak.
6. S. 13B of the Act, provides that a petition for dissolution of marriage by a decree of divorce can be presented to the District Court by both the parties to the marriage together on the ground that they have been living separately for a period of one year or more and they have not been able to live together and they have mutually agreed that their marriage be ordered to be dissolved on the motion of both the parties. Careful reading of S. 13B, does not suggest that personal appearance of the parties seeking divorce by way of mutual consent is mandatory, rather, it has ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 5 been specifically provided under S. 13B, that the petition for dissolution of marriage by way of decree of divorce can be .
presented to the District Court by both the parties to the marriage together and there is no specific condition/bar as such that such a petition can not be presented through attorney.
There cannot be any dispute with regard to the fact that at the time of considering prayer for grant of divorce, if any, under S. 13B, by way of mutual consent, court is required to record its satisfaction about the consent in terms of provisions of the Act but appearance of both the parties or their consent can also be through their duly constituted attorneys, especially when there is no specific bar contained under the Act, however, in the absence of parties, especially where attorneys appear on behalf of the parties, courts are required to be more cautious and vigilant, while recording their satisfaction about the consent. But definitely, petition for dissolution of marriage by way of decree of divorce with mutual consent cannot be rejected merely on the ground that one of the parties did not appear in person.
7. Reliance is placed on a judgment delivered by the Andhra Pradesh High Court (D.B) in Padmakiran Rao (Mrs.) Versus B. Venkateramana Rao, 1996(2) HLR 271, wherein it has been held that the word 'hearing' is often used in a broad ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 6 sense which need not always mean personal hearing. The High Court held as under:
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"2. Relying on the wording - "after hearing the parties" in Sub-section (2) of Section 13-B, the learned Subordinate Judge took the view that both the parties to the marriage should necessarily be present in the Court for examination and the filing of affidavit will not be a substitute for that requirement. The learned Judge observed that unless the parties are personally present, it would be difficult for the Court to assess whether they have changed their mind since the date of filing the petition. We do not think that this is a correct view to be taken. 'Hearing' does not necessarily mean that both parties have to be examined. The word 'hearing' is often used in a broad sense which need not always mean personal hearing. In any case, the evidence of one of the parties i.e., the appellant herein was recorded by the Court. Thus, even if the word 'hearing' is construed in a literal sense that requirement must be deemed to have been satisfied in the instant case in view of the examination of the appellant. On the husband's side, there is evidence in the form of an affidavit which can be legitimately taken into account in view of Order XIX Rule 1 C.P.C. It is not as if the affidavit has been doubted or the other party wanted to cross-examine the deponent of the affidavit. When there are no suspicious circumstances or any particular reason to think that the averments in the affidavit may not be true, there is absolutely no reason why the Court should not act on the affidavit filed by one of the parties. The learned Judge fell into error of law in observing that he cannot look into the affidavit at all. There is also a valid reason for non-attendance of the respondent in the Court. In the circumstances, the order ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 7 of the lower Court is set aside and the appeal is allowed. We declare that the marriage between the parties shall stand dissolved with effect from the date of this judgment .
and a decree for divorce be passed. We make no order as to costs."
8. Reliance is also placed upon Navdeep Kaur Vs. Maninder Singh Ahluwalia 2010(2) Civil Court Cases 383 (P&H), wherein the High Court of Punjab and Haryana has held as under:
"8. It is a case in which the parties lived together only for a period of three months. After the marriage on 7.1.2007, the divorce petition by way of mutual consent was filed on 6.1.2009 meaning thereby that admittedly the parties were residing separately for the last more than one year at the time of presentation of petition. It is also not in dispute that the respondent husband had gone abroad and he had not come back since then. The petition was filed on behalf of the husband by his father as his attorney. Even on the first date of hearing, it is the joint statement of the father of the husband respondent, Dharam Singh which was recorded as his attorney and the appellant Navdeep Kaur. The same is extracted below:--
"I, Dharam Singh, is the GPA of my son Mainder Singh Ahluwalia, vide GPA, the copy of which is Ex. PA (Original seen and returned). Our marriage of the parties was solemnised on 07-01-2007 at Chandigarh as per Sikh rites and ceremonies. On account of differences of temperament, it was not possible to live together as husband and wife and they are living separately since 08- 04-2007. Out of this wed lock, no child was born. The matter was amicably settled between the parties and a compromise deed is Ex. PB and as per the compromise, petitioner No. 1 will pay a sum of Rs. 2,35,000/- to petitioner No. 2 and as per settlement, a Demand draft of Rs. 1,35,000/- No. 407218. dated 22.12.2008, drawn on SBOP, payable at Chandigarh, has been handed over to ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 8 petitioner No. 2 and remaining amount of Rs. 1,00,000/- will be paid on the next date of hearing and petitioner No. 2 withdraw all the criminal cases filed by her against the petitioner No. 1 and his family and in future will not file .
any sort of litigation against them and will not claim any maintenance from petitioner No. 1 in future for herself.
The contents mentioned in the petition are correct and are signed by us. The marriage may kindly be dissolved."
11. The issue which arises for consideration before this court is as to whether it is mandatory for the parties to appear in person in court at the time of filing of petition for divorce by way of mutual consent and also at the time of second motion or the attorney can be authorised to appear?
18. A perusal of the impugned judgment of the learned court below shows that the learned court below dismissed the petition on the ground that the parties had not appeared in person. It had not recorded any finding as regards the petition being not bonafide or that the averments made in the petition were not true and correct and further that the consent of either of the parties had been obtained by force, fraud or undue influence which was sine-qua-non for consideration of a petition for divorce by way of mutual consent.
19. In view of the enunciation of law, as referred to above and also what is provided in Order 3 CPC, in my opinion, once the court is not doubting the genuineness of the contents stated in the petition for divorce by way of mutual consent, and one of the parties are represented by an attorney, who is none else than the father of the respondent-husband, who has fiduciary relations with the respondent/husband and cannot be expected to act against the interest of his son, such a petition cannot be rejected merely on the ground that one of the parties did not appear in person. The provisions of Section 13-B of the Act cannot be read to mean that personal appearance of the parties is mandatory. Procedural law is subservient to justice. Appearance of parties would include appearance through duly ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 9 constituted attorneys. The paramount thing which is required to be considered by the learned court below is the correctness of the contents of the petition filed and also to see that consent of .
either of the parties has not been obtained by way of force, fraud or undue influence. Parties are not required to be called in court only to see their faces. However, in the absence of the parties, where the attorney appears, the courts have to be more cautious and vigilant in recording its satisfaction about the consent in terms of the provisions of the Act. It may depend on the facts of a case, considering who is appearing as attorney.
9. In the aforesaid judgment, High Court of Punjab and Haryana has categorically held that provisions of S. 13B can not be read to mean that personal appearance of the parties is mandatory. Procedural law is subservient to justice and appearance of parties would include appearance through their duly constituted attorneys, because paramount thing, which is required to be considered by the court is correctness of the contents of petition filed and also to see that consent of either of the parties has not been obtained by way of force, fraud or undue influence.
10. In the case at hand, one of the parties i.e. appellant is unable to visit India that is why he executed a Special Power of Attorney in favour of his father, authorizing him to sign/file the petition under S. 13B on his behalf praying therein for ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 10 dissolution of their marriage by way of decree of divorce with mutual consent.
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11. Leaving everything aside, respondent-wife has no objection whatsoever to the prayer having been made on behalf of the appellant, rather, she fairly stated before this court that she of her own volition without there being any external pressure has entered into compromise with her husband (appellant), whereby they mutually agreed to dissolve their marriage by way of mutual consent. As has been taken note herein above, parties have placed on record, settlement deed, whereby respondent has received a sum of `8.00 Lakh as permanent alimony from the appellant, as such, veracity and correctness of the petition presented by father of the appellant being his attorney, can not be doubted merely on the ground that same has been presented through an attorney.
12. Paramount consideration of the court, while recording its satisfaction is to ensure that consent of either of the parties has not been obtained by way of force, fraud or undue influence.
This court having carefully perused the settlement deed placed on record and statement of respondent-wife, recorded on oath, is convinced and satisfied that the contents of the joint petition filed under S. 13B for divorce by way of mutual consent and also that of consent of either of the parties have not been obtained by way ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 11 of force, fraud or undue influence as such, prayer made in the petition under S.13B of the Act, deserves to be accepted, .
especially when there is 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.
13. Since both the parties are living separately for the last two 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 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."::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 12
14. 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."
15. 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 ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 13 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?
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 ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 14 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.
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.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 ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 15 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 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.
::: Downloaded on - 15/11/2018 22:57:00 :::HCHP 1621. 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, present appeal is allowed. Order dated 22.5.2018 passed by the learned District Judge, Kangra at Dharamshala in HMA Case No. 09/III/2018 is quashed and set aside. Joint petition filed by the parties under Section 13B(2) of the Hindu Marriage Act is allowed. Marriage between the parties is ordered to be dissolved by mutual consent. Registry is directed to draw a decree of dissolution of marriage by mutual consent accordingly.
Terms and conditions contained in the settlement deed, referred hereinabove, shall also form part of the decree. Needless to say, both the parties shall abide by all the terms and conditions contained in the settlement deed.
Pending applications, if any, are also disposed of.
(Sandeep Sharma) Judge November 13, 2018 (vikrant) ::: Downloaded on - 15/11/2018 22:57:00 :::HCHP