1 Year Seperation before filling Section 13(B) and Waiver

Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CM (MAIN) NO.6/2010

Date of Decision: January 07, 2010
MS. URVASHI SIBAL & ANR.
..Petitioners Through: Ms. Meenakshi Lekhi, Adv. with Ms. Prerna Mehta, Adv.,Mr. V.Vats, Adv.

versus

GOVT. OF NCT OF DELHI .. Respondent Through: Mr. Nand Kishore Jha, Adv.

CORAM: HON’BLE MS. JUSTICE ARUNA SURESH

(1) Whether reporters of local paper may be allowed to see the judgment? Yes
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported in the Digest ? Yes

JUDGMENT : ARUNA SURESH, J. (Oral)

1. Parties to the petition were married on 17.02.2009. Due to temperamental difference and irretrievable broke down of marriage, parties started living separately since 17.03.2009. Since one year had not elapsed from the date of separation, an application under Section 14 of the Hindu Marriage Act (hereinafter referred to as Act) was filed for waiver of one year statutory period for divorce by mutual consent under Section 13 (B) of the Act. The said application was dismissed by the trial court vide impugned order dated 18.11.2009 in view of ‘Anil Kumar Jain vs. Maya Jain’ II (2009) DMC 449 SC’.

2. In Anil Kumar Jain’s case (supra), the Supreme Court was pleased to hold that it was only the Supreme Court in exercise of its extraordinary powers under Article 142 of the Constitution of India, who could waive the statutory period and pass decree for divorce by mutual consent under Section 13 (B) (2) of the Act. It was further held that neither the Civil Court nor even the High Court can pass an order before the expiry of period prescribed under the relevant provision of the Act or on grounds not provided under Section 13 and
13-B of the Act. Therefore, the Supreme Court did not confine itself to the question of waiver of six months period as is required to be observed by the parties after a petition under Section 13 (B)
(1) of the Act is filed and allowed, before filing a petition under Section 13 (B) (2) of the Act. It discussed the power of this Court as well as of the Civil Court and its own court to waive the statutory period prescribed under Section 13 (B) or any other relevant provision of the Act or on grounds not provided under Section 13 and 13 (B) of the Act.

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3. It is submitted by Ms. Meenakshi Lekhi, learned counsel for the Petitioners
that this is a case where parties cannot reconcile their dispute as marriage is
irretrievable broke down and therefore, the Court is within its right to invoke
proviso to Section 14 of the Act and permit the parties to file a petition
under Section 13 (B) of the Act before expiry of the statutory period of one
year. These submissions are devoid of merits.

4. In Smt. Sureshta Devi Vs. Om Prakash, (1991) 2 SCC 25′ the Supreme Court
defined “living separately” appearing in Section 13 (B) (1) of the Act in the following manner:-

“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 mental 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.”

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5. The Supreme Court further proceeded to analysis the requirement of Section
13 (B) (2) of the Act and also if the court had the power of condone the
statutory period of six months to be observed by the parties before filing a
petition under Section 13 (B) (2) of the Act. The said judgment has been
followed in Anil Kumar Jain’s case (supra).

6. In ‘Nand Kishore vs. Suman’, Matrimonial Appeal No.134/2009 decided by me on
15th December, 2009, while dealing with a similar question, reliance was
placed on Smt. Sureshta Devi’s case (supra). I further distinguished the
provisions contained in Section 13 (B) (1) and Section 14 of the Act for
waiving the statutory period of one year before filing a petition under
Section 13 or 13 (B) of the Act, as the case may be.
It was observed:-

“12. It is noted that requirement under Section 13-B (1) of the Act is
separation for a period of one year or more beside others to file a petition.
Whereas under Section 14 of the Act, Court has the power to condone the
statutory period of one year, required for filing a petition under Section 13 of
the Act or any other provision

contained in the said Act, from the date of the marriage. Therefore,under no circumstances, Section 14 of the Act can be invoked in the

proceedings initiated under Section 13-B of the Act.”

7. Thus, it is clear that the statutory period of one year required to be
maintained by the parties for filing a petition under Section 13 (B) of the Act
are independent of the provisions contained in Section 14 of the Act. Section
13 (B) when read is a complete Code in itself and, therefore, for filing a
petition under Section 13 (B) of the Act, the parties cannot be allowed to
invoke Section 14 seeking waiver of the statutory period of one year from separation for filing a petition under Section 13 (B) of the Act.

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8. Hence, I find no infirmity or illegality in the impugned order of the trial court, the petition is accordingly dismissed.

(ARUNA SURESH)

JUDGE

JNAUARY 07, 2010

3 thoughts on “1 Year Seperation before filling Section 13(B) and Waiver

  1. I WAS MARRIED three YRS AGO,AND I AM ALSO FACING THE SAME SITUTION,AND MY WIFE IS TEACHER IN GOVT.SCHOOL,AND WE DONT HAVE ANY CHILD,UPTILL NOW.WE ARE THREE BROTHERS AND ALL LIVE SEPARTELY IN THIER FLAT WITH THERE FAMILY,AND MY MOTHER STAYS WITH US,BUT MY WIFE ALWAYS FIGHT WITH ME AND MY FAMILY,AND RUN TO HIS FATHER HOUSE,AND HIS FAMILY ALWAYS RUINS OUR LIFE,AND THEY NEVER TRY TO SOLVE OUR PROBLEM,BUT I ALWAYS, bring my wife back,as i cannot live without my life,or u can without sex,.Our sitution and became worse as she do not like my family members,and fight with them recently and give them filthy languge or you can gali etc,I always try to understand her, to not to fight or give gali,as you are teacher,but she run by herself to his father house,by taking all her belongings and my access sccoty,etc.NOW,I want divorce from her,or otherwise,i can commit sucide,please help me,for god saack

  2. yeah the same thing repeats and repeats but doesnt seems to have a check in this government policies which can atleast tend to change something in future

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