Punjab-Haryana High Court
Balbir Kumar vs Santosh Alias Bindu on 9 October, 2014
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
CM No. 305-CII of 2014 in/and
FAO-M-168 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CM No. 305-CII of 2014 in/and
FAO-M-168 of 2008 (O&M)
Date of Decision: 9.10.2014
Balbir Kumar
....Appellant.
Versus
Santosh @ Bindu
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MRS. JUSTICE RAJ RAHUL GARG.
PRESENT: Mr. D.R. Bansal, Advocate for the appellant.
Mr. Vipul Dharmani, Advocate for the respondent.
AJAY KUMAR MITTAL, J.
1. Delay of 10 days in refiling the appeal is condoned.
2. In this appeal, the appellant-husband has challenged the judgment and decree dated 12.2.2008, whereby the petition under Section 13 of the Hindu Marriage Act, 1955 (In short, "the Act") for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion filed by him was dismissed by the District Judge, Rupnagar.
3. A few facts necessary necessary for adjudication of the instant appeal as narrated therein may be noticed. The marriage between the parties was solemnized 24.10.1999 at Yamuna Nagar according to Hindu rites and ceremonies. After the marriage, the parties GURBACHAN SINGH 2014.10.17 11:56 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 305-CII of 2014 in/and FAO-M-168 of 2008 -2- lived together as husband and wife at Mohali but the respondent-wife never allowed the appellant to have sexual relations or to consummate the marriage. Out of the said wedlock, no child was born. The behaviour of the respondent from the very beginning was not adjustable and she started saying that her marriage with the appellant was solemnized against her wishes. Further, on the instigation of the respondent, the appellant had taken her to her parent's house on 9.11.1999. On 'Dori Paranda' ceremony, the parents of the appellant had gone to the house of the parents of the respondent on 17.11.1999 along with customary gifts and taken the respondent back on 17.11.1999 after giving the gifts. On the asking of the respondent, the appellant separated themselves from the other family members in the same house on the pretext that she will adjust herself in the family but her behaviour did not change. The respondent left the matrimonial home on 30.4.2000 against the wishes of the appellant and took away golden ornaments, valuable articles and customary gifts. A panchayat was convened to the house of the parents of the respondent in the month of June, 2000 but the respondent and her parents were adamant to send her only if the appellant had taken the independent accommodation outside the house of his parents. However, the respondent did not turn up inspite the fact that the appellant had taken accommodation on rent. The respondent also filed a criminal complaint under Sections 498-A/406 of the Indian Penal Code against the appellant and his family members in which they were arrested and all the dowry articles were taken away by the police as case property. Thereafter, the respondent filed a petition under Section 125 of the Code of Criminal Procedure for maintenance and the GURBACHAN SINGH 2014.10.17 11:56 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 305-CII of 2014 in/and FAO-M-168 of 2008 -3- appellant had been paying interim maintenance to the respondent. The father of the respondent also filed a complaint before the Superintendent of Police, Mohali on 27.11.2000 against the appellant and his parents. Since the appellant did not turn up, the report was sent to the Superintendent of Police, Yamuna Nagar and the complaint was filed. On 14.7.2003, a panchayat was convened at the house to the parents of the respondent and the appellant along with his parents and some respectables had gone there and in the presence of the panchayat, the parents of the respondent refused to send her to the matrimonial home. The appellant also filed a petition under Section 12(1)(a)(c) of the Act for annulment of marriage which was later on withdrawn as the respondent had failed to put in appearance. Feeling aggrieved, the appellant filed a petition under Section 13 of the Act for dissolution of marriage by passing a decree of divorce. The said petition was contested by the respondent by filing a written statement. Besides raising various preliminary objections, it was pleaded that the parties cohabited as husband and wife after the marriage. It was further pleaded that the appellant and his family members were not satisfied with the dowry given in the marriage. The other averments made in the divorce petition were controverted and a prayer for dismissal of the same was made. The appellant filed replication controverting the averments made in the written statement. The trial court on appreciation of oral as well as documentary evidence led by the parties dismissed the petition filed under Section 13 of the Act for a decree of divorce on the ground of desertion and cruelty vide judgment and decree dated 12.2.2008. Hence, the present appeal.
GURBACHAN SINGH 2014.10.17 11:56 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 305-CII of 2014 in/and FAO-M-168 of 2008 -4-
4. Vide order dated 1.4.2009, the matter was referred to the Mediation and Conciliation Centre of this Court to explore the possibility of amicable settlement between the parties and the parties were directed to appear before the Mediation and Conciliation Centre of this Court on 20.4.2009. However, the meditation process remained unsuccessful as the respondent could not appear before the Mediation and Conciliation Centre of this Court on 3.9.2009. Therefore, the matter was sent back to this Court for further orders. Thereafter, deliberations were carried out for amicable settlement between the parties before this Court and on 28.11.2013, the matter was adjourned to 13.12.2013 for filing settlement and joint petition under Section 13B of the Act. Consequently, the dispute between the parties was amicably settled before this Court vide settlement deed dated 13.12.2013, Ex.C1, and a joint petition under Section 13B of the Act was also filed.
5. As per the terms and conditions entered between the parties, an application bearing CM No. 304-CII of 2014 was filed for converting the original petition under Section 13 of the Act into a petition under Section 13B of the Act which has also been filed separately bearing CM No. 305-CII of 2014. The said application bearing CM No. 304-CII of 2014 was allowed as prayed for by this Court vide order dated 10.1.2014 and the joint petition bearing CM No. 305-CII of 2014 was taken on record.
6. Both the parties made their respective statements on 31.1.2014 as first motion for dissolution of the marriage by mutual consent under Section 13B of the Act. Thereafter, the case was adjourned to various dates and ultimately on 9.10.2014, the statements GURBACHAN SINGH 2014.10.17 11:56 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 305-CII of 2014 in/and FAO-M-168 of 2008 -5- of the parties by way of second motion as required under Section 13B of the Act were recorded.
7. Appellant-Balbir Kumar and respondent-Santosh alias Bindu 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. The demand draft bearing No. 530227 dated 31.7.2014 for a sum of ` 1,50,000/- drawn in favour of the respondent-wife produced by the learned counsel for the appellant has been handed over to the respondent-wife and a photo copy thereof is taken on record. Both the parties have agreed for divorce by way of mutual consent under Section 13B of the Act. They have confirmed that a joint petition under Section 13B of the Act has been presented by them for grant of decree of divorce by mutual consent. The parties have stated that they are agreed to get the marriage dissolved by mutual consent in terms of settlement deed dated 13.12.2013, Ex.C1.
8. Section 13-B of the Act reads thus:
"13B. Divorce by mutual consent.-(1) Subject to the provisions of this 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, (68 of 1976) on the ground that they have been living separately for a period of one year or more, that they have not been GURBACHAN SINGH 2014.10.17 11:56 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 305-CII of 2014 in/and FAO-M-168 of 2008 -6- 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 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."
9. 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 one year 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.
10. The Apex Court in Hitesh Bhatnagar Vs. Deepa GURBACHAN SINGH 2014.10.17 11:56 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 305-CII of 2014 in/and FAO-M-168 of 2008 -7- Bhatnagar, AIR 2011 (SC) 1637, explained the scope of Section 13-B 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 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 GURBACHAN SINGH 2014.10.17 11:56 I attest to the accuracy and authenticity of this document High Court Chandigarh CM No. 305-CII of 2014 in/and FAO-M-168 of 2008 -8- 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."
11. In view of above and after perusing the statements made by the parties in Court on 28.3.2014 (first motion) and today i.e. 9.10.2014 (second motion) and settlement dated 13.12.2013, Ex.C1, we are satisfied that the averments made in the petition are true and requirements of Section 13B of the Act are satisfied and the parties be granted divorce by way of mutual consent. Accordingly, joint petition (C.M. No.305-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 13B of the Act is passed effective from today by modifying the judgment and decree dated 12.2.2008 passed by the trial Court.
12. It is further observed that the parties shall remain bound by the statements and terms of the settlement dated 13.12.2013, Ex.C1. However, in case any of the parties resiles from the statements or terms of the settlement, it shall be open to the other party to avail any remedy in accordance with law.
13. In view of above, the present appeal stands disposed of.
(AJAY KUMAR MITTAL)
JUDGE
October 9, 2014 (RAJ RAHUL GARG)
gbs JUDGE
GURBACHAN SINGH
2014.10.17 11:56
I attest to the accuracy and
authenticity of this document
High Court Chandigarh