Gujarat High Court
Patel Prakashkumar Gunvantbhai vs Garland Akia Elizabeth on 20 January, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/868/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 868 of 2017
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PATEL PRAKASHKUMAR GUNVANTBHAI....Petitioner(s)
Versus
GARLAND AKIA ELIZABETH....Respondent(s)
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Appearance:
MR.DIPAK B PATEL, ADVOCATE for the Petitioner(s) No. 1
MR. ASHOK A PUROHIT, ADVOCATE for the Respondent(s) No.1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 20/01/2017
ORAL ORDER
1. The petitioner and the respondent are husband and wife whose marriage was solemnized on 23.11.2009 at village Kadi, District Mehsana. This marriage was registered under the Gujarat Registration of Marriage Act on 26.11.2009. It was customary ways and as per the Hindu rites and rituals the performance in presence of relatives was made. The marriage had reached to the stage where it had according to the parties as irretrievably broken and therefore, has preferred the petition under Section 13 (1)(B) of the Hindu Marriage Act, 1955 before the Family Court, Ahmedabad for dissolution of marriage. This had been preferred on 31.05.2016, through the Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Aug 12 17:51:08 IST 2017 C/SCA/868/2017 ORDER power of attorney holder as the petitioner's wife was at United States of America (U.S.A.).
2. An office objection was raised by the court concerned as the one of the party was not present and through power of attorney the petition was preferred. According to the objections, the power of attorney was not executed in accordance with law.
3. Such office objection came to be removed on 05.10.2016.
4. The question that has been raised is as to whether the period of six months which otherwise is a mandatory cooling period, should be allowed to condone before the Competent Court takes up the matter for decree by mutual consent. Section 13 (B) of the Hindu Marriage Act reads as follow:
"Section 13(B): 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, 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 either 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 Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Aug 12 17:51:08 IST 2017 C/SCA/868/2017 ORDER is not withdrawn in the mean time, 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 divorce."
5. The Court can pass a decree of dissolution of marriage on the ground that the spouses have been living separately for a period of one year or more and that they have not been able to live together once having mutually agreed that the marriage should be dissolved, Sub-section (2) of Section 13(B) provides that on the motion of both the parties made either in 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 mean time, 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 divorce.
6. Time limit in Section 13 (B)(2) is held mandatory and not directory in various decisions of this Court and of the Apex Court. Such period provides. For an opportunity for the Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Aug 12 17:51:08 IST 2017 C/SCA/868/2017 ORDER parties to reconcile and withdraw the petition for making all the attempts to pump life into the matrimonial relationship which has come to the brink, this period of minimum six months is contemplated as a rescuer Proximity often breads contempt in such close relationship and living separately many a times cures this malaise and also enable parties to value each other so also help from understanding importance of togetherness.
7. The court however if is satisfied that the petition under Section 13(B) is not filed under force, fraud or undue influence and that it has been preferred voluntarily and the marriage between the litigating spouses have been seriously broken down and there is no possibility for them to stay together any longer, the Court would dissolve the marriage and pass a decree of divorce by mutual consent.
8. The short question that arises in light of the discussion above is as to whether the family suit which had been preferred in the month of May,2016 by the petitioners herein, where the objections came to be removed in the month of October could be permitted to be taken up for hearing before expiry of six months period from the date of removal of office objections.
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9. Admittedly, the petition had been preferred through the power of attorney holder. The preliminary hearing took place of the Application No.17 of 2016 was preferred and the Court passed an order below Exh.-1 directing the registry to register the matter on file and give number. Accordingly, it has been noted by the Court that on 23rd September,2016 that both the petitioners appeared before the Court and petitioner No.2 whose power of attorney has been objected to by the registry produced a copy of her passport and made a request to permit her to make connection. The petitioner No.2 since had personally remained present before the Court with the copy of the passport and a joint application was preferred supporting the pleadings, the Court allowed the application. The objections raised by the registry as a rescuer of this procedure came to be satisfied and therefore, the number came to be given on 5th October, 2016 in wake of the order of the Court.
10. Sub section (2) of section 13 B of the Hindu Marriage Act provides that decree for divorce has to be passed after the expiry of six months from the date of presentation of the petition for divorce by mutual consent. Introducing a statutory waiting period of six months before a decree of divorce can be Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Aug 12 17:51:08 IST 2017 C/SCA/868/2017 ORDER passed by mutual consent is to give time and opportunity to the parties for grant of divorce by mutual consent as expressed in the petition would subsist till the time when the decree is actually passed as held by this court relying on the decision of Jyotiben vs. Jigneshbhai Oza reported in 2000 (4) GLR 3522. Ordinarily no Court is competent to issue a direction contrary to law and therefore any direction in contravention of the statutory provision is not permissible more particularly as provided in case of Anilkumar Jain vs. Ahme Chain reported in 2009 (10) SCC 415 and Manish Goyal vs. Rohini Goyal reported in 2010 (4) SCC 393. However, as is quite apparent from the record that the petition has been filed in the month of May, 2016 and the parties are residing separately after their marriage has been irretrievably broken down for the past six years, necessary objections are removed in the month of October, 2016 and therefore also, the request of condoning the period of six months deserves to be allowed construing the completion of statutory period.
11. This Court further notices that below Exhibit-10 a joint application came to be made by the parties that a period of six month would be over on 30.11.2016 as the proceedings had Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Aug 12 17:51:08 IST 2017 C/SCA/868/2017 ORDER been initiated on 31.05.2016 and a request was made to take up the matter for hearing, such an application came to be granted by the Court. However, the matter is not proceeded with and hence, this petition.
12. On once having been satisfied that the irregularity which had been noticed, got cured and the application came to be numbered after once the necessary documents were brought on the record, considering the fact that the parties have been residing separately for a period of six years and the marriage is of the year 2009 the trial court rightly allowed the request made jointly for the parties strictly speaking the petition came to be registered technically on the date of number of office objection i.e. in the month of October, 2016, however since the application was preferred in the month of May, 2016 for divorce by mutual consent, with the history of separation of six years coupled with the fact that the Court also has conveyed by the learned advocate has made an attempt to reconcile between the parties as there is no possibility of their reunion on technical ground of the registration being on 5th October, 2016, should not permit the ground for the Court not to proceed. As mentioned above, as the permission is already granted on an application made by the parties, let the same be taken up for hearing at the Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Aug 12 17:51:08 IST 2017 C/SCA/868/2017 ORDER earliest and be decided in accordance with law.
13. Parties are at liberty in wake of this order to approach the Court concerned with a writ for expeditious hearing of the petition.
This petition is disposed of accordingly.
Direct Service is permitted.
(MS SONIA GOKANI, J.) MIRZA Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Aug 12 17:51:08 IST 2017