Kunal Ranawat vs Rativa Jahan Ranawat on 17 July, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 180 of 2017
CMPMO No. 181 of 2017
Reserved on 04.07.2017

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Decided on: 17.07.2017

CMPMO No. 180 of 2017
Kunal Ranawat
…..Petitioner

Versus
Rativa Jahan Ranawat
……Respondent
CMPMO No. 181 of 2017
Rativa Jahan Ranawat

…..Petitioner
Versus
Kunal Ranawat
……Respondent

__

Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting?

For the petitioner: Mr. Prashant Sharma,

Advocate in CMPMO No. 180
of 2017.

Mr. Rajiv Jiwan, Advocate in

CMPMO No. 181 of 2017.

For the respondent: Mr. Rajiv Jiwan, Advocate in

CMPMO No. 180 of 2017.

Mr. Prashant Sharma,
Advocate in CMPMO No. 181

of 2017.

Chander Bhusan Barowalia, Judge.

Since both the petitioners are seeking same

relief, as also, common facts are involved in these petitions,

hence, both these petitions were taken up together for
1
Whether reporters of Local Papers may be allowed to see the judgment?

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2

hearing and are being disposed of by this common

judgment.

2. The present petitions are maintained by the

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petitioners/applicants (hereinafter to be called as “the

applicants”) under Article 227 of the Constitution of India,

read with Section 151 of the Code of Civil Procedure,

against the order dated 18.03.2017, passed in CMP No. 73-

6/2017, as well as order dated 27.02.2017, passed in CMP

No. 47-6/2017, wherein six months cooling off period was

granted to the petitioners and the case was fixed for

consideration of divorce with mutual consent on 30.08.2017.

3. Key facts, giving rise to the present petitions are

that the applicant-husband had instituted a petition for

grant of decree of divorce under Section 13(1) (i-a) of the

Hindu Marriage Act, before learned District Judge, Bilaspur,

H.P. against the applicant-wife, on account of cruelty,

misbehavior and desertion, wherein it has been mentioned

that marriage between the parties has been solemnized in

the year 2012 at Bilaspur, H.P. and from such wedlock, no

issue was born. The respondent-wife, by filing reply to the

said petition admitted the strained relation between the

parties and she claimed maintenance to the tune of Rs.

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75,00,000/- for dissolving of marriage. Thereafter, both

husband and wife preferred CMP No. 47/6/2017, under

Order 23, Rule 3 CPC, read with Section 151 CPC, for

.

converting the earlier petition (filed by the husband) under

Section 13(1) (i-a) of the Hindu Marriage Act to a joint

petition on the ground ‘compromise’. Accordingly, a joint

application was moved under Section 13(1) (b) of Hindu

Marriage Act by both the parties, wherein they averred that

they were living separately from each other since February,

2016 and there have been no cohabitation between them

between this period. It has been further averred in the

application that a project was offered to the husband in

South Pacific Asia, but due to pendency of the present

case, he is unable to accept that project. Further the said

application was saddled on one time settlement arrived at

between the parties, whereby the wife had claimed `

75,00,000/- (Rupees seventy five lac), as one time

maintenance amount to dissolved the marriage with mutual

consent and in view of the settlement, the wife shall forfeit

all claims against her husband or his estate in future. In terms

of said application, both the parties agreed to withdraw all

their cases, including the complaint filed by the wife under

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Domestic Violence Act. Thereafter, on the above said

application, the statements of the parties were recorded on

27.02.2017 (Annexure P-4). Though the applicants have

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preferred the application for conversion of the divorce

petition into a petition for granting the divorce by mutual

consent, on the grounds that the parties were living

separately for more than six months, yet learned Court

below has posted the matter after six months i.e, on

30.08.2017, as a cooling off period. After that the parties

with a plea that the cooling off period has already been

fulfilled by them, moved another application No. 73/6 of

2017, under Section 151 CPC, for recalling that order, as the

READ  Kumar vs State Of Tamil Nadu on 9 May, 2013

matter was fixed for consideration of divorce with mutual

consent after six months. However, the same was dismissed

by the learned District Judge, Bilaspur, H.P. with the

observations that “there is no power with this Court to waive

off the period of six months, hence, there is no substance in

the application”. Hence the present petitions.

4. I have heard the learned counsel for the parties

and gone through the record carefully.

5. Mr. Prashant Sharma and Mr. Rajiv Jiwan,

Advocates, for the petitioners have argued that both the

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petitioners are residing separately since February, 2016 and

there is no hope of reconciliation between them. They have

further argued that the marriage has broken down

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irretrievably, the parties have not been cohabiting with

each other and living separately since February, 2016, now

the parties by way of one time settlement have

compromised the matter vide Compromise Deed (Ext. PA).

As per the terms and conditions of Compromise Deed (Ext.

PA), the petitioner-wife has mutually agreed to one time

settlement and claimed ` 75,00,000/-(Rupees seventy

five lac) as one time maintenance amount to dissolved the

marriage with mutual consent and in view of the

settlement, the wife shall forfeit all claims against her

husband or his estate in future. Learned counsel for the

parties have further argued that as there are no other issues

or disputes regarding any articles, pending to be resolved

between the petitioners, therefore, there is no impediment

in curtailing the period of six months and granting a decree

of divorce by mutual consent, hence the present petitions

are required to be allowed and orders of learned Court

below are required to be set aside.

6. Hon’ble Supreme Court in Sureshta Devi vs. Om

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Prakash’s case, has discussed in detail, the legislative intent

behind the waiting period from six months to eighteen

months in Section 13-B (2) of the Act. The relevant extracts

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of the judgment are reproduced hereinbelow.

“10. Under sub-section (2) the parties are
required to make a joint motion not earlier than

six months after the date of presentation of the
petition and not later than eighteen months
after the said date. This motion enables the
Court to proceed with the case in order to
satisfy itself about the genuineness of the

averments in the petition and also to find out
whether the consent was not obtained by force,
fraud or undue influence. The Court may make
such inquiry as it thinks fit including the hearing
or examination of the parties for the purpose of

satisfying itself whether the averments in the

petition are true. If the Court is satisfied that the
consent of parties was not obtained by force,
fraud or undue influence and they have
mutually agreed that the marriage should be
dissolved, it must pass a decree of divorce.

13. from the analysis of the Section, it will be
apparent that the filing of the petition with
mutual consent does not authorize the Court to
make a decree for divorce. There is a period of

waiting from 6 to 18 months. This interregnum
was obviously intended to give time and

opportunity to the parties to reflect on their
move and seek advice from relations and
friends. In this transitional period one of the

parties may have a second thought and
change the mind not to proceed with the
petition. The spouse may not be party to the
joint motion under sub-section (2). There is
nothing in the Section which prevents such
course. The Section does not provide that if
there is a change of mind it should not be by
one party alone, but by both. The High Courts of
Bombay and Delhi have proceeded on the
ground that the crucial time for giving mutual
consent for divorce is the time of filing the

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petition and not the time when they
subsequently move for divorce decree. This
approach appears to be untenable. At the time
of the petition by mutual consent, the parties
are not unaware that their petition does not by
itself snap marital ties. They know that they have

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to take a further step to snap marital ties. Sub-

section (2) of Section 13-B is clear on this point.
It provides that “on the motion of both the
parties…if the petition is not withdrawn in the

meantime, the Court shall… pass a decree of
divorce…” What is significant in this provision is
that there should also be mutual consent when
they move the Court with a request to pass a
decree of divorce. Secondly, the Court shall be

satisfied about the bonafides and the consent of
the parties. If there is no mutual consent at the
time of the enquiry, the Court gets no
jurisdiction to make a decree of divorce. If the
view is otherwise, the Court could make an
rinquiry and pass a divorce decree even at the
instance of one of the parties and against the

consent of the other. Such a decree cannot be
regarded as decree by mutual consent.

14. Sub-section (2) requires the Court to hear
the parties which means both the parties. If one

of the parties at that stage says that “I have
withdrawn my consent”, or “I am not a willing
party to the divorce”, the Court cannot pass a
decree of divorce by mutual consent. If the

Court is held to have the power to make a
decree solely based on the initial petition, it
negates the whole idea of mutuality and

consent for divorce. Mutual consent to the
divorce is a sine qua non for passing a decree
for divorce under Section 13-B. Mutual consent

should continue till the divorce decree is
passed. It is a positive requirement for the Court
to pass a decree of divorce. The consent must
continue to decree nisi and must be valid
subsisting consent when the case is heard.”

7. Now coming to the present case, the issue that

READ  Nirmal Kaur @ Nirmala vs State on 1 June, 2017

arises for consideration is, whether the statutory period of six

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months, as envisaged under Section 13-B (2) of the Act, can

be curtailed by this Court.

8. In Anil Kumar Jain vs. Maya Jain, 2009 (10) SCC,

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415, the Hon’ble Supreme Court, has held that it has power

under Article 142 of the Constitution of India to convert

proceedings under Section 13 of the Hindu Marriage Act,

1955, into one under Section 13-B and grant a decree for

mutual divorce without waiting for the statutory period of six

months, by applying the doctrine of irretrievable

breakdown of marriage. However, the Hon’ble Apex Court

has categorically held, in no uncertain terms, that except

for the Supreme Court, no High Court or Civil Court has the

power to grant relief by invoking the doctrine of

irretrievable breakdown of marriage. The Hon’ble Supreme

Court has held as under :

“28. It may, however, be indicated that in
some of the High Courts, which do not possess
the powers vested in the Supreme Court under

Article 142 of the Constitution, this question had
arisen and it was held in most of the cases that
despite the fact that the marriage had broken
down irretrievably, the same was not a ground
for granting a decree of divorce either under
Section 13 or
Section 13-B of the Hindu
Marriage Act, 1955.

29. In the ultimate analysis the aforesaid
discussion throws up two propositions. The first
proposition is that although irretrievable
breakdown of marriage is not one of the

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grounds indicated whether under Section 13 of
13-B of the Hindu Marriage Act, 1955, for grant
of divorce, the said doctrine can be applied to
a proceedings under either of the said
provisions only where the proceedings are
before the Supreme Court. In exercise of its

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extraordinary powers under Article 142 of the

Constitution the Supreme Court can grant relief
to the parties without even waiting for the
statutory period of six months stipulated in

Section 13-B of the aforesaid Act. This doctrine
of Irretrievable breakdown of marriage is not
available even to the High Courts, which do not
have powers similar to those exercised by the
Supreme Court under
Article 142 of the

Constitution. Neither the Civil Courts nor even
the High Courts can, therefore, pass orders
before the periods prescribed under the
relevant provisions of the Act or on grounds not
provided for in
Section 13 and 13-B of the Hindu

Marriage Act, 1955.

30. The second proposition is that although

the Supreme Court can, in exercise of its
extraordinary powers under
Article 142 of the
Constitution, convert a proceeding under
Section 13 of the Hindu Marriage Act, 1955, into

one under Section 13-B and pass a decree for
mutual divorce, without waiting for the statutory
period of six months, none of the other Courts
can exercise such powers. The other Courts are

not competent to pass a decree for mutual
divorce if one of the consenting parties
withdraws his/her consent before the decree is

passed. Under the existing laws, the consent
given by the parties at the time of filing of the
joint petition for divorce by mutual consent has

to subsist till the second stage when the petition
comes up for orders and a decree for divorce
is finally passed and it is only the Supreme
Court, which, in exercise of its extraordinary
powers under
Article 142 of the Constitution,
can pass orders to do complete justice to the
parties.”

9. The above principles of law are reiterated by

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the Hon’ble Supreme Court in Manish Goel vs. Rohini Goel,

2010 (4) SCC 393, which reads thus:

“12. In Anjana Kishore vs. Puneet Kishore, this

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Court while allowing a transfer petition directed

the Court concerned to decide the case of
divorce by mutual consent, ignoring the
statutory requirement of moving the motion
after expiry of the period of six months under

Section 13-B (2) of the Act. In Anil Kumar Jain,
this Court held that an order of waiving the
statutory requirements can be passed only by
this Court in exercise of its powers under
Article
142 of the Constitution. The said power is not

vested with any other Court.

13. However, we have also noticed various
judgments of this Court taking a contrary view
to the effect that in case the legal ground for
grant of divorce is missing, exercising such
r power tantamounts to legislation and thus

transgression of the powers of the legislature,
which is not permissible in law.

14. Generally, no Court has competence to
issue a direction contrary to law nor the Court
can direct an authority to act in contravention

of the statutory provisions. The Courts are
meant to enforce the rule of law and not to
pass the orders or directions which are contrary
to what has been injected by law.”

10. In the present case, the ground taken by the

petitioners is that their marriage has broken down

irretrievably and the parties have not been cohabiting with

each other and living separately since February, 2016, both

the petitioners have mutually agreed that it be dissolved,

hence the waiving period of six months ought to be

curtailed.

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11. It is clear from the judgments of the Hon’ble

Supreme Court reproduced hereinabove that in curtailing

the statutory period of six months and granting a decree of

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divorce by mutual consent, except Hon’ble the Supreme

Court, this power is not available to any other Court,

including this Court. Such powers can be exercised only by

the Hon’ble Supreme Court, under Article 142 of the

Constitution of India.

12. Accordingly, in view of the law, as laid down by

the Hon’ble Supreme Court in Anil Kumar Jain vs. Maya Jain

and Manish Goel vs. Rohini Goel, I find no illegality in the

orders passed by the learned Court below and the present

petitions deserve dismissal and are accordingly dismissed.

However, in the peculiar facts and circumstances of the

case, parties are left to bear their own cost(s).

13. The petition(s) stands disposed of, so also

pending application(s), if any.

(Chander Bhusan Barowalia)
Judge

17th July, 2017
(raman)

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