Punjab-Haryana High Court
Robin Massey vs Nikita on 27 October, 2014
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
CM No. 7468-CII of 2014 in/and
FAO No. 5816 of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CM No. 7468-CII of 2014 in/and
FAO No. 5816 of 2011 (O&M)
Date of Decision: 27.10.2014
Robin Massey
....Appellant.
Versus
Nikita
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MR. JUSTICE GURMIT RAM.
PRESENT: Mr. Brijender Kaushik, Advocate for the appellant.
Mr. Sandeep Jasuja, Advocate for the respondent.
AJAY KUMAR MITTAL, J.
1. By way of instant appeal, the appellant-husband has challenged the judgment and decree dated 28.4.2011 passed by the District Judge, Family Court, Gurgaon, whereby petition filed by him under Sections 18 and 19 (iii) of the Indian Divorce Act, 1869 (in short "the Act") which is pari materia to Section 13-B of the Hindu Marriage Act, 1955 for declaring the marriage between the parties a nullity, was dismissed.
2. Briefly stated, the facts necessary for adjudication of the instant appeal as narrated therein may be noticed. The marriage between the parties was solemnized on 28.11.2008 according to Christians rites and ceremonies by a priest Mr. Emmanuel of the GURBACHAN SINGH 2014.12.10 14:37 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 7468-CII of 2014 in/and FAO No. 5816 of 2011 (O&M) -2- Pentecostal Mission at Gurgaon and Jagadhri. Out of the said wedlock, no issue was born. Both the parties separated immediately after the marriage, i.e. in the month of December, 2008 and started living separately since then. Accordingly, the appellant filed a petition under Sections 18 and 19(iii) of the Act for declaring the marriage between the parties a nullity. The District Judge, Family Court, Gurgaon vide judgment and decree dated 28.4.2011 dismissed the said petition. Hence, the present appeal.
3. During the pendency of the appeal, the parties have amicably resolved their differences. As per the terms and conditions entered between the parties, a joint petition bearing C.M. No.7468-CII of 2014 was filed under Section 10A of the Act for grant of a decree of divorce by mutual consent.
4. Both the parties made their statements on 22.4.2014 as first motion for dissolution of the marriage by mutual consent under Section 10A of the Act. The case was adjourned on the said date for today i.e. 27.10.2014 for recording the statements of the parties by way of second motion as required under Section 10A of the Act.
5. Appellant-Robin Massey and respondent-Nikita are present in Court today. They have been identified by their respective counsel. The second motion statements of the parties i.e. appellant-husband and respondent-wife have been recorded on solemn affirmation. Both the parties have agreed for divorce by way of mutual consent under Section 10A of the Act. They have confirmed that a joint petition under Section 10A has been presented by them for grant of decree of divorce by mutual consent. As per the terms and conditions, a demand draft GURBACHAN SINGH 2014.12.10 14:37 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 7468-CII of 2014 in/and FAO No. 5816 of 2011 (O&M) -3- bearing No. 874138 dated 20.10.2014 amounting to ` 9,50,000/- in favour of Nikita has been handed over to her. Further, cash amount of ` 7500/- on account of arrears of maintenance for the months of January, March and October, 2014 has been paid to the respondent-wife today in Court. The parties have stated that they are agreed to get the marriage dissolved by mutual consent in terms of joint petition filed under Section 10A of the Act.
6. Section 10A of the Act reads thus:
"10A. Dissolution of marriage by mutual consent.-
(1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said GURBACHAN SINGH 2014.12.10 14:37 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 7468-CII of 2014 in/and FAO No. 5816 of 2011 (O&M) -4- date, if the petition is not withdrawn by both the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree."
7. A plain reading of sub-section (1) shows that the parties to the marriage wherever agree by mutual consent that the marriage should be dissolved by a decree of divorce on the ground that they have been living separately for a period of two years or more, both the parties may present a petition for divorce to the District Court. On presentation of such petition, statement by way of first motion would be recorded. Under sub-section (2), second motion would be required to be made which should be after six months from the date of presentation of the petition referred in sub-section (1) and not later than eighteen months from the date of first motion where the petition has not been withdrawn. The Court, on being satisfied after hearing the parties pass a decree of divorce to be effective from the date of the decree.
8. The Apex Court in Hitesh Bhatnagar Vs. Deepa Bhatnagar, AIR 2011 (SC) 1637, explained the scope of Section 13-B of the Hindu Marriage Act, 1955 which is identically worded to Section 10A of the Act as under:-
"14) The language employed in Section 13B(2) of the Act is clear. The Court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the GURBACHAN SINGH 2014.12.10 14:37 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 7468-CII of 2014 in/and FAO No. 5816 of 2011 (O&M) -5- decree, if the following conditions are met:
a. A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under subsection (1) and not later than 18 months;
b. After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and c. The petition is not withdrawn by either party at any time before passing the decree;
15) In other words, if the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent.
Otherwise, in our view, the expression 'divorce by mutual consent' would be otiose."
9. In view of above and after perusing the statements made by GURBACHAN SINGH 2014.12.10 14:37 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 7468-CII of 2014 in/and FAO No. 5816 of 2011 (O&M) -6- the parties in Court on 22.4.2014 (first motion), today i.e. 27.10.2014 (second motion), we are satisfied that the averments made in the petition are true and requirements of Section 10A of the Act are satisfied and the parties be granted divorce by way of mutual consent. Accordingly, joint petition (C.M. No.7468-CII of 2014) which is supported by affidavits of the appellant as well as the respondent, is allowed. Consequently, a decree of divorce under Section 10A of the Act is passed effective from today by modifying the judgment and decree dated 28.4.2011 passed by the trial Court.
10. It is further observed that the parties shall remain bound by the statements and terms of the petition filed under Section 10A of the Act. However, in case any of the party resiles from the statements or terms of the petition, it shall be open to the other party to avail any remedy in accordance with law.
11. In view of above, the present appeal as well as misc. application stand disposed of.
(AJAY KUMAR MITTAL)
JUDGE
October 27, 2014 (GURMIT RAM)
gbs JUDGE
GURBACHAN SINGH
2014.12.10 14:37
I attest to the accuracy and
authenticity of this document
High Court Chandigarh