Allahabad High Court
Lalit Kumar vs Nirmala @ Ravina on 12 January, 2023
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 37 Case :- MATTERS UNDER ARTICLE 227 No. - 12190 of 2022 Petitioner :- Lalit Kumar Respondent :- Nirmala @ Ravina Counsel for Petitioner :- Ashwani Kumar Yadav Hon'ble Ajit Kumar,J.
Heard Sri Ashwani Kumar Yadav, learned counsel for the petitioner.
By means of this Petition filed under Article 227 of the Constitution, petitioner wants expeditious disposal of the Matrimonial Case No. 405 of 2018 pending before the Additional Principal Judge, Family Court, Budaun for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955. Counsel for the petitioner submits that this Petition was jointly filed by the parties as they want to be mutually separated and rehabilitate themselves after mutual separation/divorce. It is submitted by learned counsel for the petitioner that both the parties have not only appeared in the case but have even filed their respective affidavits that mutual divorce may be granted, however, family court has not disposed of the matter as yet and has been fixing one date or the other. Counsel for the petitioner has placed reliance upon the judgement of the Supreme Court in the case of Amardeep Singh vs. Harveen Kaur (2017) 8 SCC 746 and submits that even the cooling off period is over. Since the Petition has been field in the year 2018 so there is no more any statuary bar as far as disposal of the matrimonial case under Section 13-B of the Act, 1955 is concerned.
Having heard the learned counsel for the petitioner and having perused the record, I find that the Court has been fixing matter for the purposes of cross-examination repeatedly. This Court fails to understand as to when the mutual divorce petition has been filed under Section 13-B of the Hindu Marriage Act and both the parties have put in appearance and have filed their personal affidavits that the mutual divorce be granted, why the Court has been fixing dates one after another for the purposes of cross-examination.
The parties have shown their intention to mutually divorce themselves and to rehabilitate and so the spirit of Section 13 B is lost, if the matter is lingered on for no justifiable reason.
In the instant case, I find that the petition was filed in the year, 2018 and now we are in the year 2023.
The Principal Judge, Family Court has unnecessarily lingered on the matter.
Not only this case, but I have found in several petitions coming up before this Court every day wherein the Petition under Section 13-B though have been jointly moved with an application to wave off the cooling off period prescribed for under the Statute and yet family courts do not grant waiver and instead fix long dates for disposal of the Petition.
In Amardeep Singh's case (Supra), the Supreme Court has primarily dealt with two issues:
(a) Whether the provision as contained under Section 13-B(2) of the Hindu Marriage Act, 1955 is mandatory or directory?; and
(b) Whether the cooling off period prescribed for under the said sub-section can be waved off even in the event cooling off period has not expired?
While dealing with the first issue, the Court deliberated upon the aims and objects behind the incorporation of provisions of Section 13-B vide Amending Act No. 68 of 1986 and the relevant case laws with regard to the powers of the Supreme Court under Article 142 of the Constitution viz a viz provision contained under Section 13-B (2) of the Act, 1955 and the principles related to the rules of interpretation as to the provision, in order to hold the provision to be directory and not mandatory. Vide paragraph nos. 16, 17 and 18, the Court held thus:
"16. 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.
17. 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.
18. 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.(2005) 4 SCC 480 as follows:
" 34. ... ' 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 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."
In view of the above, the Court held that the Legislature intended the provision to be directory and not mandatory.
Having held as above, the Supreme Court proceeded to consider the second issue with regard to waving off period, if any, available to the petitioner filed under Section 13-B of the Hindu Marriage Act. Again in the light of aims and objects with which the provision had been incorporated and where every effort to make the marriage survive has failed and parties have agreed to better chance of rehabilitation after mutual divorce and any kind of perpetuity of status quo of the litigation would only result in a futile exercise for reconciliation, the Court held that if the case passes through certain parameters, a mutual application filed for waving off the cooling off period and deciding the matter earlier than the statutory period prescribed for under relevant provision of the Act, such a cooling off period can be waved off to serve the ends of justice in a matter of matrimonial dispute. Accordingly, in paragraph 19 and 20 of the aforesaid judgement, the Court held thus:
"19. 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.
The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned
20. 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."
(emphasis added) As per the mandate contained in the above judgement of the Supreme Court, every such petition which is filed under Section 13-B of the Hindu Marriage Act for mutual divorce, if is accompanied by an application along with an Affidavit to grant waiver of cooling off period of six months and if it meets the parameters of Clause 1 of the directions contained under para 19 above of the judgement and clauses 2, 3 and 4 of the aforesaid directions are clearly attracted then such waiver application, should normally be granted by the Family Court. In order to satisfy the Clauses 2, 3 and 4 of paragraph 19 of the aforesaid judgement, the Court should require the parties to appear before it so as to record its satisfaction that there is no likelihood of conciliation/mediation between the parties to save the marriage and the only option available, as consented by the parties, is to dissolve the marriage.
This above exercise should be done by the Family Court as expeditiously as possible and that too within a reasonable period so that any effort of rehabilitation by the parties after mutual divorce, does not get defeated for unnecessary prolong litigation. To be specific 90 days' period would be a reasonable period and once a waiver application stands granted, the matter be immediately disposed of.
Court is conscious that in exercise of its power under Article 227 of the Constitution, it should not ordinarily direct a Court of law to decide a matter in all circumstances within a particular period but looking to the fact that these are the cases in the nature of matrimonial dispute and that the parties come to Court by filing petition for mutual divorce voluntarily after arriving at some settlement, such settlement be always given priority in its attaining the formal declaration as such in law over and above other matters.
Registrar (Compliance) is directed to communicate this order to all the Family Courts of the State forthwith to ensure that mandate contained in the order of Court in all such Petitions filed under Section 13-B of the Hindu Marriage Act, 1955 is followed strictly if the cases meet the parameters laid under para 19 of Amardeep Singh's judgement (Supra).
In view of the above, this Petition stands disposed of with a direction to the Family Court concerned to consider the matter of the petitioner filed under Section 13-B of the Hindu Marriage Act in the light of the observations made herein above.
However, I may clarify that if for any technical reason or unavoidable circumstances, the matter does not get disposed of within time and as a result, any delay in disposal of said matter and pendency thereof shall not hold liable the judicial officer concerned for Contempt but the Court concerned shall always be required to record reasons for granting adjournment to the parties or otherwise deferring hearing of the case by fixing dates.
Order Date :- 12.1.2023 A. Mandhani