Himachal Pradesh High Court
Bhim Sain vs Anisha And Another on 8 October, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Revision No.346 of 2019a/w
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CMPMO No.390 of 2020
Date of decision: 8.10.2020
1. Cr. Revision No.346 of 2019
Bhim Sain ....Petitioner
Versus
Anisha and another ....Respondents
______________________________________________________________
2. CMPMO No.390 of 2020
Bhim Sain r ....Petitioner
Versus
Anisha ....Respondent
Coram
The Hon'ble Mr. Justice Sandeep Sharma, J.
Whether approved for reporting?1Yes.
______________________________________________________________ For the Petitioner(s): Mr. Sandeep Datta, Advocate.
For the Respondent(s): Ms. Komal Chaudhary, Advocate.
Sandeep Sharma, Judge Being aggrieved and dissatisfied with the order dated 5.7.2019 passed by learned Sessions Judge (Family Court) Mandi, District Mandi, Himachal Pradesh, in Criminal Petition No.42/19/2016, whereby petition under Section 125 Cr.P.C, having been filed by the respondents for grant of maintenance came to be allowed, petitioner-husband has approached this Court in the instant proceedings filed under Sections 397/401 of the Code of 1 Whether the reporters of Local Papers may be allowed to see the judgement?
::: Downloaded on - 14/10/2020 20:17:36 :::HCHP 2Criminal Procedure, praying therein to set-aside the aforesaid impugned order dated 5.7.2019 passed by learned Sessions Judge .
(Family Court) Mandi, H.P.
2. Precisely, the facts of the case as emerge from the pleadings available on record are that marriage inter se petitioner and respondent No.1 was solemnized in the month of February, 2014 as per Hindu Rites and Customs. Respondent No.2, who is minor born out of aforesaid wedlock inter se petitioner and respondent-wife. Parties to the lis cohabited together as husband and wife cordially for some, but unfortunately, some dispute cropped up between them, as a consequence of which, they started living separately. Respondent namely, Anisha along with her minor daughter filed petition under Section 125 Cr.P.C., for grant of maintenance in the Court of learned Sessions Judge (Family Court) Mandi, District Mandi, H.P., which came to be decided on 5.7.2019, whereby Family Court directed the petitioner-husband to pay sum of Rs.4000/- per month to respondent No.1 (wife) and Rs.3000/- to respondent No.2, till her marriage from today. In the aforesaid background, petitioner-husband approached this Court in the instant proceedings, praying therein to set-aside aforesaid impugned order passed by learned Court below.
3. Having regard to the nature of controversy inter se parties, this Court while taking cognizance of the petition at hand, ::: Downloaded on - 14/10/2020 20:17:36 :::HCHP 3 deemed it fit to summon both the parties to the Court, so that possibility of amicable settlement, if any, could be explored.
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4. On 23.9.2019, this Court having interacted with the parties found that parties are not agreeable to live together and as such, they exchanged offers, so that their marriage could be dissolved by way of mutual consent.
5. On 8.11.2019, learned counsel representing the parties under instructions of their respective clients informed this Court that both the parties have entered into the compromise and as per agreed terms, sum of Rs. 8.00 lac would be paid by the petitioner-husband to the respondent-wife towards full and final settlement in three installments; first installment of Rs.2.00 lac would be paid on or before 22.11.2019; second installment of Rs.2.00 lac on or before 9.1.2020; and last installment of Rs.4.00 lac on or before 31.3.2020. Besides above, respondent-wife also prayed that petitioner-husband may be directed to pay some of Rs.5000/- per month to respondent No.2 i.e. his daughter till her marriage.
6. Today i.e. on 8.10.2020, parties have come present before this Court. They both on oath stated before this Court that they of their own volition and without there being any external pressure have entered into the compromise, whereby they both have decided to end their marriage with mutual consent, for which ::: Downloaded on - 14/10/2020 20:17:36 :::HCHP 4 purpose, a separate petition under Section 13-B of Hindu Marriage Act, praying therein for dissolution of their marriage by way of .
mutual consent has been filed. Respondent-wife also stated before this Court that she has received sum of Rs.8.00 lac towards permanent alimony from the petitioner-husband and thereafter she shall have no claim against the petitioner-husband in future and shall have no objection in case petition under Section 13-B of the Hindu Marriage Act, having been filed by her alongwith the petitioner is allowed. Their statements are taken on record.
Application filed under Section 13-B of the Hindu Marriage Act, is ordered to be registered separately by the Registry of this Court, enabling this Court to pass appropriate orders in those proceedings
7. In view of the above, learned counsel representing the parties state that in view of the aforesaid development, order 5.7.2019 passed by learned Court below may be quashed and set-
aside
8. Accordingly, the present petition is allowed and order dated 5.7.2019 passed by learned Court below is quashed and set-
aside alongwith pending applications, if any.
CMPMO No. 390 of 20209. By way of instant petition filed under Section 13-B of the Hindu Marriage Act, joint prayer has been made on behalf of ::: Downloaded on - 14/10/2020 20:17:36 :::HCHP 5 the parties to the lis for dissolution of their marriage by mutual consent. Since, facts in detail leading to separation interse .
petitioner and respondent No.1 as well as amicable settlement interse them in the aforesaid criminal proceedings stand duly elaborated in the earlier part to the judgment recorded by this Court while disposing of the criminal petition, there appears to be no necessity to narrate the same again as it would unnecessary burden the judgment.
10. In the instant petition, it has been averred on behalf of the parties that they are living separately from each other for the last five years at their respective addresses mentioned in the memo of parties and during this period there has been no cohabitation as such and there is no relationship of husband-wife between them. Parties have further stated in the petition that they have mutually agreed for their marriage to be dissolved because there has been no cohabitation between them and there is no likelihood of their cohabiting in future and their marriage has been broken beyond repair. Factum with regard to amicable settlement arrived interse them in Criminal Petition No.346/2019 stands duly mentioned in the instant petition, wherein factum with regard to receipt of sum of Rs.8.00 lac by respondent-wife stands duly acknowledged towards permanent alimony. In view of aforesaid settlement arrived interse parties, parties have entered ::: Downloaded on - 14/10/2020 20:17:36 :::HCHP 6 into Divorce Deed (Annexure P-1) annexed with the petition, perusal whereof reveals that petitioner has paid sum of Rs.8.00 lac .
to the respondent-wife as one time settlement, whereas respondent-wife has agreed that she will not claim any maintenance in future from the petitioner and shall have no claim of any kind against the petitioner. Both the parties have mutually agreed to withdraw cross-cases instituted by them against each other.
11. Having taken note of averments contained in the joint petition filed under Section 13-B of Hindu Marriage Act as well as statements of the parties and contents of divorce deed annexed with the petition, this Court sees no impediment in accepting the prayer made in the petition, especially when there is no possibility of rapprochement or conciliation between the parties.
12. Accordingly, for the reasons and circumstances narrated hereinabove, present petition filed under Section 13-B of the Hindu Marriage Act deserves to be allowed. Since both the parties are living separately for the last five years and they have been litigating with each other, statutory period of six months as envisaged under the Act for grant of divorce by way of mutation consent, can be waived of, especially when there is no possibility of rapprochement of the parties and marriage has broken beyond ::: Downloaded on - 14/10/2020 20:17:36 :::HCHP 7 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."
13. 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."
14. 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 ::: Downloaded on - 14/10/2020 20:17:36 :::HCHP 8 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 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 ::: Downloaded on - 14/10/2020 20:17:36 :::HCHP 9 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 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 ::: Downloaded on - 14/10/2020 20:17:36 :::HCHP 10 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 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."
::: Downloaded on - 14/10/2020 20:17:36 :::HCHP 1115. Consequently, in view of the detailed discussion made hereinabove, petition filed under Section 13-B of the Hindu .
Marriage Act, is allowed and in view of the peculiar facts and circumstances as enumerated hereinabove as well as law laid down by the Hon'ble Apex Court, the 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 Divorce Deed dated 8.10.2020(Annexure P-1) referred hereinabove, shall also form part of the decree.
16. Needless to say, both the parties shall abide by all the terms and conditions contained in the application.
17. The instant petition filed under Section 13-B of the Hindu Marriage Act, is disposed of in the aforesaid terms. Pending applications, if any, are also disposed of.
8th October, 2020 (Sandeep Sharma)
(shankar) Judge
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