Himachal Pradesh High Court
Rohit Kalia vs Smt. Sangita Sharma on 28 November, 2023
Bench: Vivek Singh Thakur, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (FC)No.53 of 2021 Reserved on: 9.11.2023 Decided on: 28 .11.2023 Rohit Kalia .... Appellant .
Versus
Smt. Sangita Sharma .... Respondent
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge The Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting1 : Yes.
of For the Appellant: Mr. J.L.Bhardwaj, Senior Advocate with Mr. Sarthak Upadhyay, Advocate.
For Respondent: Mr. Y.P.Sood, Advocate.
Sandeep Sharma, J
rt
Instant appeal filed under Section 28 of the Hindu Marriage Act, 1955 (for short 'Act') read with Section 19 of the Family Courts Act, 1984, lays challenge to judgment dated 20.09.2021 passed by learned Principal Judge, Family Court, Una, District Una, Himachal Pradesh in CIS Registration No.166 of 2017, titled Sangita Sharma versus Rohit Kalia, whereby marriage interse appellant-husband and respondent-wife came to be dissolved by a decree of divorce with mutual consent in terms of Section 13-B of the Act on the basis of their statements recorded during mediation proceedings in Cr.MMO No.191 of 2016, titled Sangita Sharma and another vs. Sh. Rohit Kalia.
2. Precisely, the grouse of the appellant-husband as detailed in grounds of appeal and further canvassed by Mr. 1 Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 28/11/2023 20:32:56 :::CIS 2J.L.Bhardwaj, learned Senior Counsel representing the appellant, is that court below while passing order of dissolution of marriage on the basis of mutual consent in terms of Section 13-B of the Act has .
failed to follow the due procedure of law and as such, same is not sustainable in the eye of law. Mr. Bhardwaj, strenuously argued that though direction was issued by this Court to decide the HMA Petition No.166 of 2017 by treating it as a petition for mutual of divorce, but even then due procedure of law, as prescribed under Section 13-B of the Act, was required to be followed by the Court below while ordering dissolution of marriage by mutual consent. Mr. rt Bhardwaj, submitted that since no statements, if any, of the parties were ever recorded by learned Family Court and cooling period, as prescribed under Section 13-B of the Act, was not waived off, order of dissolution of marriage by mutual consent in terms of Section 13-B of the Act is not sustainable in the eye of law.
3. To the contrary, Mr. Y.P.Sood, learned counsel representing the respondent, supported the impugned judgment and contended that once specific direction was issued by this Court in Cr.MMO No.191 of 2016 alongwith COPC No.81 of 2019 to the Court below to treat HMA Petition No.166 of 2017 as a petition for mutual divorce and decide the same on the basis of statements recorded in those proceedings, there was otherwise no occasion, if any, for the Court below to again record the statements of the parties before ordering dissolution of marriage by mutual consent.
::: Downloaded on - 28/11/2023 20:32:56 :::CIS 3While making this Court peruse order dated 24.5.2021 passed by this Court, Mr. Sood, vehemently argued that there was specific direction to Family Court to decide the petition on the basis of .
statements recorded in the proceedings decided by this Court.
4. Before ascertaining the correctness and genuineness of rival submissions made by learned counsel representing parties, it may be apt to take note of few facts, which may be relevant for of adjudication of the case at hand, which are as under:-
4.1 That marriage interse parties was solemnized on 25.4.2012 in accordance with Hindu rites and rituals, rt however, on account of bitterness in the relation, they were unable to live to together for long. Out of the wedlock interse parties, one son namely, Yuvan Kalia alias Aadvik Sharma was born on 28.10.2014. On account of strained relationship, parties initiated various proceedings under various enactments against each other. Respondent-wife preferred complaint under Section 12 of Protection of Women from Domestic Violence Act and such complaint was subsequently converted into FIR No.284 of 2015 under Sections 406 and 498-A IPC, registered at police Station, Haroli, District Una, H.P. Besides above, respondent-wife also filed petition for maintenance under section 125 Cr.P.C and a petition for divorce under Section 13(1)(ia) and ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 4 13(1)(ib) of the Act for dissolution of marriage in Family Court at Una. Appellant-husband also initiated a civil suit against respondent-wife and a petition under Section 9 .
of Hindu Marriage Act for restitution of conjugal rights in Civil Court, Chandigarh and also a petition under Guardian and Wards Act, 1890 at Una for custody of child and a contempt petition No.332 of 2017, titled of Rohit Kalia vs. Sangita Sharma in this Court. In a petition filed under Section 125 Cr.P.C, learned Judicial Magistrate awarded interim maintenance to wife and rt child amounting to Rs. 10,000/- each, which subsequently came to be reduced by learned Sessions Judge in Cr. Revision No.62 of 2015 preferred by the appellant-husband. Being aggrieved with the direction of interim maintenance, respondent-wife approached this Court by way of Cr.MMO No.191 of 2016.
4.2 Having regard to the nature of the dispute interse parties, Co-ordinate Bench of this Court made an attempt for amicable settlement and referred the matter to mediation. During mediation, parties agreed not to pursue the issue involved in Cr.MMO No.191 of 2016 and also other matters pending interse them. They also decided to close all the matters pending in various Courts against each other with further understanding ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 5 that HMA Petition No.166 of 2017 pending in the Court of learned District Judge, Una, titled Sangita Sharma vs. Rohit Kalia, for decree of mutual divorce shall be .
decided on the basis of settlement arrived at and all other matters referred supra and also appeals, revisions, applications etc. arising thereto shall be deemed to have been withdrawn without any further consequence and of adjudication. As per settlement, custody of minor child of parties was agreed to be with respondent-wife, who voluntarily out of her own will agreed to bear all legal rt obligation for maintenance, upbringing and ensuring the welfare of the minor till he attains the age of majority without claiming any financial and other contribution of any kind from the husband or his parents or any other relative, except as agreed in terms of settlement. As per settlement, appellant-husband agreed to deposit an amount of Rs. 3, 50,000/- in the name of minor child identifying him as Yuvan Kalia alias Aadvik Sharma, by way of fixed deposit receipt, which shall not be withdrawn/encashed till the minor son attains the age of majority. However, periodical interest earned from the said FDR shall be released to wife for utilization thereof exclusively on the welfare and upbringing of the child.
::: Downloaded on - 28/11/2023 20:32:56 :::CIS 64.3 Clauses 9 and 10 of terms and conditions of settlement arrived interse parties before the mediation proceedings provided for visitation right of non-custodial parent, .
whereby it came to be agreed interse parties that father of the child shall have visitation right to meet his minor child on second and fourth Saturdays and Sundays of every month at 2:30 P.M. on Saturdays and 11:00 A.M. of on Sundays for a duration of 2½ hours and the husband shall be at liberty to exercise such rights singly or jointly with his parents, but in absence and to the exclusion of rt mother Sangita Sharma.
4.4 In clause 10 of the settlement, it came to be agreed interse parties that they shall be at liberty to approach the High Court of Himachal Pradesh for variation, alteration or modification of terms and conditions, mechanism and mode of exercising the right of visitation, including custody on account of legal disability of mother. In the aforesaid background, learned Single judge vide order dated 21.04.2018 passed in Cr.MMO No.191 of 2016,directed the Registry to forthwith call for records of all the cases pending between the parties in various Courts in the State of Himachal Pradesh. During pendency of aforesaid Cr.MMO No.191 of 2016, appellant-husband deposited sum of Rs. 3, 50,000/- in ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 7 the Registry of this Court in terms of settlement arrived interse parties before learned Mediator and on 4.01.2019, learned Single Judge of this Court directed to .
call for record of HMA Petition No.166 of 2017 from the Court of learned District Judge, Una for listing the same before appropriate Bench for passing appropriate orders in terms of settlement. In the aforesaid background, of case i.e. Cr.MMO No.191 of 2016 ultimately came to be listed before another Bench, who after having taken note of tone and tenor of the order passed by Co-ordinate rt Bench of this Court and perused terms and conditions of the settlement arrived interse parties, passed detailed order vide judgment dated 24.5.2021, thereby directing parties to appear before learned District Judge, Una, either personally or through counsel on 30th June, 2021, by putting physical or virtual appearance, enabling it to pass final judgment and decree for dissolution of marriage on the basis of mutual consent. While passing aforesaid order, learned Single Judge categorically ordered that no fresh notice shall be issued by learned District Judge for presence of parties on failure to appear by either party, but the petition shall be taken up and disposed of by learned District Judge, by passing appropriate order and decree for dissolution of marriage ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 8 on the basis of consent expressed by the parties before learned Mediator as well as in their statements recorded on oath, in the Court.
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4.5 In the aforesaid backdrop, petition filed for dissolution of marriage at the behest of respondent came to be listed before the Principal Judge, Family Court, Una, District Una, Himachal Pradesh. On 7.7.2021, parties as well as of their counsel put in appearance before the Court below, but when they were asked to record the statements on the basis of their consent expressed before the learned rt Mediator as well as in their statements recorded before this Court, learned counsel for the respondent submitted that there are still some issues to be settled and sought more time so that the statements of the parties could be recorded before the Court and as such, Court adjourned the matter to 9.7.2021 for recording the statements of the parties. However, on 9.7.2021, learned counsel for the respondent apprised the Court below that respondent has filed application before the Hon'ble High Court, stating therein that petitioner is not abiding by the conditions of the agreement as she is not allowing the child to meet the respondent. Learned Principal Judge, Family Court again adjourned the matter to 20.09.2021, on which date, it having taken note of order dated ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 9 24.5.2021 passed by this Court in Cr.MP No.1183 of 2018, 413 of 2019, 686 of 2020, 1696 of 2020 in Cr.MMO No.191 of 2016 alongwith COPC No.81 of .
2019, proceeded to dissolve the marriage interse parties by passing a decree of divorce by mutual consent in terms of the provision contained under Section 13-B of the Act on the basis of the statements given by the of parties during mediation proceedings, which were ultimately made part of the record by the Court while disposing of Cr.MMO No.191 of 2016. In the aforesaid rt background, appellant-husband has approached this Court in the instant proceedings, praying therein to set-
aside aforesaid order of dissolution of marriage by mutual consent.
5. Learned Senior counsel representing the appellant has placed reliance upon the judgments passed by Hon'ble Apex Court in Smt. Sureshta Devi versus Om Prakash, (1991)2 Supreme Court Cases 25, Smruti Pahariya versus Sanjay Pahariya, (2009) 13 Supreme Court Cases 338 and Amandeep Singh versus Harveen Kaur, (2017) 8 Supreme Court Cases 746, to state that no order thereby dissolving marriage interse parties by mutual consent in exercise of power under Section 13-B of the Act could have been passed by the family court without recording the ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 10 statements of parties and waiving of cooling period of six months as provided under the Act.
6. At this stage, it would be apt to take note of judgment .
rendered by Hon'ble Apex Court in Smt. Sureshta Devi versus Om Prakash, (1991) 2 Supreme Court Cases 25, wherein it has been held that in joint petition of parties for grant of divorce decree, Court may make inquiry and hear and examine both the parties to of ascertain that the averments made in the divorce petition were true and that the consent of the parties were not obtained by force, fraud or undue influence. Hon'ble Apex Court in the aforesaid judgment rt further held that subsequent motion seeking divorce decree under sub-section (2) is not 'of both the parties' because of withdrawal of consent by one of the parties, court gets no jurisdiction to pass the decree. Mutual consent should continue till passing of the decree.
The relevant para Nos.5 to 9 of aforesaid judgment are as under:-
"5. Section 13-B was not there in the original Act. It was introduced by the Amending Act 68 of 1976. Section 13- B provides:
13-B(l) Subject to the provisions of the Act a petition for dissolution of marriage by a decree of divorce 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 Marriage Laws (Amendment) Act, 1976, 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 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 ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 11 said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after 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 of divorce declaring the marriage to be dissolved with effect from the date of the decree."
6. It is also necessary to read Section 23(l)(bb):
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" 23(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-
(bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and ....."
7. Section 13-B is in pari materia with Section 28 of the Special Marriage Act, 1954. Sub-section (1) of Section 13-B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both the parties. Similarly, sub- section (2) of providing for the motion before the Court for hearing of the petition should also be by both the parties.
8. There are three other requirements in sub-section (1). There are:
(i) They have been living separately for a period of one year. rt
(ii) They have not been able to live together, and
(iii) They have mutually agreed that marriage should be dissolved.
9. The 'living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression 'living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they 'have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved."
7. Since in all the other cases pressed into service by learned Senior counsel representing the appellant, similar preposition of law has been laid down by Hon'ble Apex Court, this ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 12 Court finds no necessity to refer the same as it would unnecessary burden the judgment.
8. Having perused Section 13-B of the Act vis-à-vis .
aforesaid law laid down by Hon'ble Apex Court, this Court finds that to get the marriage dissolved by way of mutual consent in terms of sub-section (1) of Section 13-B of the Act, parties should file a joint petition for divorce by mutual consent. Apart from above, there are of three requirements, which should be fulfilled before passing appropriate orders on a joint petition filed under Section 13-B of the Act i.e. (i) parties must have been living separately for a period of rt one year or more. Though, expression living separately connotes not living like husband and wife, they may live under the same roof by force of circumstances but may not be living as husband and wife. Second requirement is that they have not been able to live together indicates the concept of broken down marriage irreparably and there is no possibility of rapprochement. Last but important condition is that they of their free will have mutually agreed that the marriage should be dissolved. After presentation of petition under Section 13-B(1), Court with a view to ascertain free consent of the parties is required to record the statements of first motion of both the parties and if in that statement parties express their intention to get their marriage dissolved by mutual consent and all the conditions, as detailed hereinabove, are also fulfilled, Court may adjourn the matter for some time, enabling parties to re-think and in ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 13 case on or before next date one of the party to the joint petition withdraws his/her consent, Court may refuse to dissolve the marriage by mutual consent while exercising power under section .
13-B(1) of the Act. Needless to say, time given to the parties for recording statement of second motion after recording statement of first motion is considered as cooling period, but by now it is well settled that aforesaid cooling period can be waived off by the Court of considering joint prayer made on behalf of the husband and wife for dissolution of their marriage by mutual consent in terms of Section 13-B(1) of the Act, if it is satisfied that marriage has broken rt irreparably and there is no chance of rapprochement. Reliance in this regard is placed upon judgment rendered by this Court in Bharti Kapoor v. Des Raj, CMPMO No. 271 of 2017, decided on 31.10.2018, wherein it has been held as under:
8. Accordingly, for the reasons and circumstances narrated herein above, present petition is ordered to be converted into a petition under Section 13B of Hindu Marriage Act. Since both the parties are living separately for the last many 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 ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 14 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."
9. 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:-
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"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."
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10. 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 rt 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?::: Downloaded on - 28/11/2023 20:32:56 :::CIS 15
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.
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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 of 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 rt 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 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 ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 16 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;
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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 rt 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."
9. It is quite apparent from bare perusal of the aforesaid judgments passed by this court (supra) and Hon'ble Apex Court that the very object of aforesaid provision is to enable the parties to dissolve a marriage by consent, especially if marriage has broken irreparably and there is no possibility of rapprochement.
10. Precisely, the grouse as has been sought to be raised in the instant petition by the appellant, is that Family Court while passing impugned judgment, thereby dissolving marriage by mutual consent failed to record statements of the parties and at no point of time "cooling period" as required was waived off. Though, having ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 17 carefully perused law laid down by Hon'ble Apex Court, as detailed hereinabove, this Court finds no reason to disagree with Mr. J.L.Bhardwaj, learned senior counsel representing the appellant-
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husband that after presentation of joint petition under Section 13(b)(1) of the Act, statements of the parties are required to be recorded by Family Court and before passing decree of dissolution by way of mutual consent, any party is entitled to withdraw his/her of consent, but there appears to be merit in the contention of Mr. Y.P.Sood, learned counsel representing the respondent that once parties including appellant-husband had agreed before this Court in rt Cr.MMO No.191 of 2016 to get their marriage dissolved by mutual consent and to that effect their statements were recorded before the High Court and they had agreed to get their marriage dissolved by way of mutual consent in terms of Section 13-B of the Act on the basis of statements recorded before the Mediator, which were subsequently made part of the record, there was otherwise no occasion, if any, for Family Court to record the statements of the parties afresh before passing order, thereby dissolving marriage by mutual consent.
11. Careful perusal of order dated 24.5.2021 passed by learned Single Judge of this Court in Cr.MMO No.191 of 2016, clearly reveals that specific direction was issued to the Family Court to treat HMA Petition No.166 of 2017 pending in the Court of learned District Judge, Una as petition under Section 13(b)(1) of the ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 18 Act for dissolution of marriage with mutual consent having been filed by the parties jointly and thereafter dispose of the same on the basis of consent expressed by them before learned Mediator as well as in .
their statements recorded on oath in High Court. Learned Single Judge of this Court while passing order dated 24.5.2021 specifically took note of terms of settlement arrived interse parties, which were ordered to be made part of the record by Court vide order dated of 21.4.2018. As per terms and conditions, parties with a view to bring peace to the parties and to pave way for complete effective settlement of all the pending litigations between the parties and rt implement the settlement in letter and spirit agreed that High Court of Himachal Pradesh shall be deemed to have been jointly requested by the parties to close the pending contempt proceedings registered as COPC No.332 of 2017, titled Rohit Kalia vs. Sangeeta Sharma without any further adjudication on merit. They also stated in terms of terms and conditions that they admit and confirm that aforesaid settlement is a result of their mutual deliberation and the same have been arrived at between the parties of their own free will and they will remain bound by the said terms in letter and spirit.
12. Most importantly, Clause 14 of the terms and settlement provided that pending litigations, as detailed hereinabove, will be disposed of and will form part and parcel of decree which will be passed by the Hon'ble High Court for ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 19 dissolution of marriage by mutual consent. Though, as per terms and conditions arrived interse parties, decree for dissolution of marriage in terms of Section 13(b)(1) of the Act was to be passed .
by the High Court, but learned Single Judge, having taken note of the fact that original side jurisdiction to decide such petition is with learned District judge, disposed of the Cr.MMO No.191 of 2016 with a direction to learned Family Court, Una to consider the petition for of dissolution of marriage filed by respondent-wife to be a joint petition of parties for divorce and pass appropriate decree on the basis of consent expressed by parties before the learned Mediator as well as rt their statements recorded on oath in the High Court. While directing the parties to appear before learned District Judge, Una on 30.6.2021, learned Single Judge specifically ordered that no fresh notice shall be issued by learned District Judge for presence of the parties on failure to appear by either party and petition shall be taken up and disposed of by the learned District Judge by passing appropriate order and decree for dissolution of marriage on the basis of the consent expressed by the parties before learned Mediator as well as in their statements recorded on oath in the High Court. In the aforesaid backdrop, no scope, if any, was left for learned Family Court to again record the statements of the parties to order dissolution of marriage by mutual consent in terms of provision contained in Section 13(b)(1) of the Act. Though, perusal of orders dated 7.7.2021 and 9.7.2021 passed by learned Family ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 20 Court, District, Una, reveals that parties were directed to record statements on the basis of their consent expressed before learned mediator as well as their statements recorded before this Court, but .
learned counsel representing the appellant submitted that there are still some issues to be settled and as such, matter was adjourned for 9.7.2021, on which date, again matter could not be decided for the reason that Court was apprised that appellant-husband has filed of proceedings before Hon'ble High Court against the respondent-wife for not complying the direction of the Hon'ble Court, whereby she refused appellant-husband to meet the child.
rt
13. Since judgment dated 24.5.2021 passed by learned Single Judge in Cr.MMO No.191 of 2016 was never laid challenge in the superior Court of law by either of the parties, it attained finality and as such, no illegality can be said to have been committed by learned Family Court while ordering dissolution of marriage by way of granting decree of divorce in terms of section 13(b)(1) of the Act on the basis of the statements of the parties recorded before learned Mediator and this Court on oath in Cr.MMO No.191 of 2016. Since specific direction was issued to the Family Court by this Court to pass decree of dissolution of marriage by mutual consent on the basis of the statements already recorded by learned Mediator and by learned Single Judge of this Court on oath in Cr.MMO No.191 of 2016, coupled with the fact that such order was ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 21 never laid challenge in the superior Court of law , court below had no option, but to decide the same accordingly.
14. No doubt, in terms of Section 13(b)(1) of the Act as .
well as law laid down by the Hon'ble Apex Court, statements of the parties are required to be considered by Family Court before considering prayer, if any, made in the joint petition under section 13-B(1) of the Act by way of mutual consent, but since in the case of at hand parties while compromising the dispute arrived at settlement, thereby agreeing to get their marriage dissolved by way of mutual consent on the basis of the statements recorded by rt learned Mediator as well as this Court, no prejudice, if any, can be said to have been caused to the appellant-husband on account of non-recording of statements afresh, if any, by learned Family Court.
15. Terms and conditions of the compromise as well as statements of the parties recorded before the learned Mediator and learned Single Judge, clearly reveals that parties had expressed their clear intention and desire to get their marriage dissolved by way of mutual consent and in that regard matter was left to the High Court, but learned Single Judge of this Court instead of passing decree of dissolution of marriage himself directed the learned Family Court, Una to do the needful on the basis of the statements already recorded by learned Mediator as well as learned Single Judge of this Court.
::: Downloaded on - 28/11/2023 20:32:56 :::CIS 2216. At this stage, this Court specifically asked learned Senior counsel representing the appellant that once parties had agreed to get their marriage dissolved and in that regard had given .
statements to the learned Mediator as well as learned Single Judge of this Court, what has promoted appellant-husband to approach this Court in the instant proceedings. Learned Senior Counsel representing the appellant-husband stated that since respondent-
of wife is not permitting the appellant-husband to meet child in terms of the compromise, he is entitled to withdraw his consent. However, this Court finds no force in the aforesaid submission of learned rt Senior Counsel representing the appellant because for violation of terms and conditions, if any, remedy lies somewhere else and in that regard appropriate proceeding can always be initiated against respondent-wife by the appellant-husband.
17. Interestingly, this Court finds from the record that after passing of order dated 24.5.2021, whereby direction was issued to learned Family Court to pass decree of dissolution of marriage by way of mutual consent on the basis of the statements of the parties recorded by the learned Mediator as well as learned Single Judge of this Court, appellant-husband filed Cr.MP No.2632 of 2021 in Cr.MMO No.191 of 2016, thereby seeking clarification to the effect that "whether learned Principal Judge, Family Court, Una, Himachal Pradesh had to follow the procedure of recording statements of the parties afresh or had to pass decree for divorce on the basis of ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 23 statements already recorded by learned Single Judge of this Court in Cr.MMO No.191/2016, titled Sangita Shamra vs. Rohit Kalia."
Learned Single Judge of this Court vide order dated14.6.2022 .
passed the following order:-
"Considering the tone and tenor as well as essence of the order passed by Co-ordinate Bench of this Court, in my opinion no fresh statements of parties were required to be recorded by the District Judge for passing a decree for dissolution of marriage, under of Section 13-B of the Hindu Marriage Act, as agreed between the parties."
18. Interestingly, no challenge was ever laid to aforesaid rt order passed by learned Single Judge. Once learned Single Judge had clarified vide aforesaid order that no fresh statements of the parties were required to be recorded by learned District Judge for passing a decree for dissolution of marriage under Section 13-B of the Act, as agreed between the parties, there was otherwise no occasion, if any, for the appellant-husband to approach this Court in the instant proceedings. Had aforesaid order passed by learned Single Judge, thereby issuing clarification, as detailed hereinabove, was set aside in appropriate proceedings, appellant-husband could be justified in claiming that no decree of dissolution of marriage in terms of Section 13-B of the Act could be passed by Family Court without recording the statements of the parties.
19. As far as waiving off cooling period is concerned, law in that regard has been already taken note of, which clearly provides ::: Downloaded on - 28/11/2023 20:32:56 :::CIS 24 that if there is no possibility of rapprochement and marriage is broken irreparably, Court can waive off cooling period. Though, in the instant case, no specific order to waive off cooling period was .
passed but since it is not in dispute that that marriage interse parties has broken irreparably and there is no possibility of rapprochement as can be easily inferred from the pleadings as well as statements of the parties, no prejudice otherwise can be said to have been of caused to the appellant-husband on account of non waiving off the cooling period.
20. Consequently, in view of the above, the present appeal rt fails and accordingly same is dismissed alongwith pending applications, if any.
(Vivek Singh Thakur)
Judge
(Sandeep Sharma)
November 28th, 2023 Judge
(shankar)
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