Priyanka Kaushik vs Nikhil Sharma on 10 October, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
FAO(HMA) No.359 of 2017
Date of Decision:10th October,2017

.

_

Priyanka Kaushik ….Appellant.

Versus

Nikhil Sharma ….Respondent.

_
Coram:

The Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?1 Yes.

For the Appellant Mr. Sudhir Thakur, Advocate.

For the Respondent Mr. Vinay Kuthiala, Senior Advocate, with
r Mr. Diwan Singh, Negi, Advocate.

Sandeep Sharma, Judge

Appellant being aggrieved and dissatisfied with the

judgment dated 07.07.2017, passed by learned Additional

District Judge-II, Solan, District Solan, H.P., in HMA Petition

No.33ADJ-II/3 of 2015, whereby petition having been filed by

the appellant under Section 13 of Hindu Marriage Act, 1955 for

dissolution of marriage by a decree of divorce, came to be

dismissed, has approached this Court by way of instant appeal

filed under Section 28 of the Hindu Marriage Act, 1955, praying

therein for decree of divorce after setting aside the judgment

dated 07.07.2015, passed by the learned Additional District

Judge-II, Solan, District Solan, H.P.

Whether reporters of the local papers may be allowed to see the judgment?

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2. Facts, in brief as emerge from the record are that the

marriage of appellant and respondent was solemnized on

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28.06.2012, according to Hindu rites and customs at Hotel

Paragon Place, Solan, District Solan, H.P., and no issue was born

out of their wedlock. Since, the parties were not able to live

peacefully and cordially with each other after the marriage for

various reasons, which have been enumerated in the petition

filed before the learned Court below, appellant by way of petition

filed under Section 13 of Hindu Marriage Act, 1955, sought

dissolution of marriage by way of decree of divorce. However, fact

remains that aforesaid petition having been filed by the

appellant, came to be dismissed.

3. On 12.09.2017, when this matter came up for

admission, this Court having regard to the nature of the

litigation pending inter se the parties, summoned both the

parties in the Court, so that possibility, if any, of amicable

settlement inter se parties is explored. Vide aforesaid order, this

Court directed both the parties to remain present in Court on

10th October, 2017.

4. Today i.e.10.10.2017, during the proceedings of the

case, this Court made sincere and serious attempt to ensure

reconciliation between the parties, but unfortunately appellant,

who initiated proceedings against the respondent, expressed her

unwillingness to join the company of the respondent, who

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admittedly stated before this Court that he is ready and willing to

take the appellant back to her matrimonial house. This Court in

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the presence of learned counsel representing the parties, made

both the parties understand the consequences of prolonged

litigation as well as their having settled the matter amicably inter

se them. But this Court after having interacted with both the

parties sees no possibility of reconciliation/rapprochement

between the parties. It may be noticed that during the

proceedings of the case, this Court solely with a view to give some

more time to the parties to reconsider their decision adjourned

the matter for post lunch session but in vain. However, lateron

learned counsel representing the parties, informed this Court

that parties have mutually agreed to get their marriage dissolved

by way of mutual consent and in this regard they filed an

application under section 151 of Code of Civil Procedure, praying

therein, for converting the divorce petition under Section 13 of

the Hindu Marriage Act into the divorce petition under Section

13-B of the Hindu Marriage Act. Besides above, parties also filed

joint petition under Section 13-B of the Hindu Marriage Act, for

dissolution of marriage by way of mutual consent.

5. In the aforesaid joint petition filed under Section 13-

B of the Hindu Marriage Act, parties while praying for dissolution

of their marriage by way of mutual consent have averred that

marriage between them could not last long and due to the

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circumstances prevailing between the parties, they got separated

from each other w.e.f. 28.11.2014 and thereafter they are living

.

separately and have no relationship. Parties also averred in the

petition, referred above, that marriage between them has

irrevocably broken down and same has virtually come to an end

emotionally and physically and there is no scope of cohabitation

in future, hence, with the intervention of the relatives and

friends, they have decided to dissolve their marriage by way of

mutual consent. Both the parties have also stated in their

petition that as per the agreement entered between them, the

respondent shall pay lump sum maintenance of `5.00 lakh to the

appellant in token of final settlement of his claim of maintenance

and as such, after making aforesaid payment, respondent shall

have no liability of any sort towards the appellant. Similarly,

appellant shall withdraw all the cases pending in any Court of

law against the respondent and shall also withdraw appeal under

Domestic Violence Act, pending before this Court in terms of

aforesaid agreement arrived inter se the parties. Now onward

relationship of wife and husband between the parties has come

to an end and they are now free to live their life independently

without any interference from each other.

6. This Court solely view a view to ascertain the

correctness and genuineness of the submissions having been

made by learned counsel for the parties as well as averments

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contained in the joint petition filed under Section 13-B of the

Hindu Marriage Act, also recorded the statements of both the

.

parties on oath, who categorically stated before this Court that

they have entered into compromise with their own volition and

without there being any external pressure, whereby they have

decided to dissolve their marriage by way of mutual consent.

Their statements are taken on record alongwith aforesaid

application. Registry is directed to assign number to the

application.

7. Appellant namely Priyanka Kaushik, stated on oath

before this Court that she has agreed to receive `5.00 Lakh as

full and final alimony, in terms of the aforesaid settlement, out of

which `.2:00 Lakh shall be paid within a period of one week and

`3:00 lakh within a period of three months thereafter. She

categorically stated before this Court that she has no objection in

case decree of divorce by way of mutual consent is passed and

she shall withdraw all the cases against the respondent pending

in any court of law including this Court.

8. Similarly, respondent namely Nikhil Sharma stated

before this Court that he has agreed to pay `5.00 lakh to the

appellant as full and final settlement for divorce, out of which

`2.00 lakh shall be paid to the appellant within a period of one

week and `3.00 lakh within three months thereafter and he will

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also withdraw his claim, if any, filed against the appellant

pertaining to matrimonial dispute.

.

9. After having taken note of aforesaid averments

contained in the application, jointly moved by the parties, as well

as their statements recorded on oath, this court sees no

possibility of rapprochement/reconciliation inter se parties and

as such, this Court sees no impediment in accepting the joint

request/ prayer having been made on behalf of the parties for

decree of divorce by way of mutual consent. Since, both the

parties have jointly prayed before this Court that the petition

under Section 13 of the Hindu Marriage Act, may be converted

into petition under Section 13-B of the Hindu Marriage Act, as

they have mutually agreed to dissolve the marriage, the divorce

petition filed under Section 13 of the Hindu Marriage Act, is

ordered to be converted into petition under Section 13-B of the

Hindu Marriage Act. Since, the parties are living separately since

2014 i.e. approximately for the last three years and they have

been litigating since 2015, statutory period of six months as

envisaged under Section 13-B of the Act , for granting decree by

mutual consent can be waived, especially when there is no

possibility of rapprochement between the parties and marriage

has broken beyond repair. In this regard, it would be apt to take

note of the judgment rendered by the Hon’ble Apex Court in

Veena vs. State (Government of NCT of Delhi) and another,

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(2011)14 SCC 614, wherein the Hon’ble Apex Court has held as

under:-

.

” We have heard the learned counsel for the parties and

talked to the parties. The appellant has filed a divorce
petition under Section 13(1)(a) of the Hindu Marriage Act,
1955, being HMA No.397/2008 which is pending before
the Court of Sanjeev Mattu, Additional District Judge,

Karkardooma Courts, Delhi. In the peculiar facts and
circumstances of this case, we deem it appropriate to
transfer the said divorce petition to this Court and take
the same on Board. The said petition is converted into
one under Section 13B of the Hindu Marriage Act and we
grant divorce to the parties by mutual consent.”

10. However, in the present case, the parties are in

appeal before this Court, as such, prayer of the parties to convert

the petition under Section 13 of the Hindu Marriage Act into

under Section 13-B of the Hindu Marriage Act, is required to be

considered accordingly. Otherwise also, it is quite evident from

the record that the parties are not living together since 2014 i.e.

for the last three years. Moreover, this Court after having

interacted with the parties, sees no possibility of reconciliation

inter se parties, as such, no fruitful purpose would be served in

case the matter is kept pending for another six months before

passing decree of divorce by mutual consent.

11. Hon’ble Apex Court in Priyanka Khanna v. Amit

Khanna, (2011) 15 SCC 612, has further held as under:-

“7. We also see form the trend of the litigations pending
between the parties that the relationship between the
couple has broken down in a very nasty manner and
there is absolutely no possibility of a rapprochement
between them even if the matter was to be adjourned for a
period of six months as stipulated under Section 13-B of
the Hindu Marriage Act.

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8. We also see from the record that the first litigation had
been filed by the respondent husband on 2.6.2006 and a
petition for divorce had also been filed by him in the year,
2007. We therefore, feel that it would be in the interest of

.

justice that the period of six months should be waived in

view of the above facts.”

12. In the instant case also, statutory period of six

months deserves to be waived keeping in view the fact that the

marriage between the parties has broken beyond repair and there

seems to be no possibility of parties living together. The Hon’ble

Apex Court in Civil Appeal No.11158 of 2017 [arising out of

Special Leave Petition (Civil) No.20184 of 2017] titled as

Amardeep Singh vs. Harveen Kaur, decided on 12.09.2017, has

held as under:-

“13. Learned amicus submitted that waiting period enshrined
under Section 13(B)2 of the Act is directory and can be waived

by the court where proceedings are pending, in exceptional
situations. This view is supported by judgments of the Andhra
Pradesh High Court in K. Omprakash vs. K. Nalini 10,
Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11,

Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and
Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt.
Neeta13. Contrary view has been taken by Kerala High Court in

M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11
AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106
(DB) Moorkkanatt14. It was submitted that Section 13B(1)

relates to jurisdiction of the Court and the petition is
maintainable only if the parties are living separately for a period
of one year or more and if they have not been able to live
together and have agreed that the marriage be dissolved. Section
13B(2) is procedural. He submitted that the discretion to waive
the period is a guided discretion by consideration of interest of
justice where there is no chance of reconciliation and parties
were already separated for a longer period or contesting
proceedings for a period longer than the period mentioned in
Section 13B(2). Thus, the Court should consider the questions:

i) How long parties have been married?

ii) How long litigation is pending?

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iii) How long they have been staying apart?

iv) Are there any other proceedings between the
parties?

.

v) Have the parties attended mediation/ conciliation?

vi) Have the parties arrived at genuine settlement which
takes care of alimony, custody of child or any other

pending issues between the parties?

14 AIR 2010 Ker 157

14. The Court must be satisfied that the parties were
living separately for more than the statutory period and

all efforts at mediation and reconciliation have been tried
and have failed and there is no chance of reconciliation
and further waiting period will only prolong their agony.

15. 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.

16. 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.

17. In determining the question whether provision is
mandatory or directory, language alone is not always

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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.15as follows:

15 (2005) 4 SCC 480 “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.”

18. 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

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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.

19. The waiver application can be filed one week after the

first motion giving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of the
waiting period for the second motion will be in the
discretion of the concerned Court.

21. 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
rchances of alternative rehabilitation.”

14. Consequently, in view of detailed discussion made

hereinabove, CMP No. 9050 of 2017 filed under Section 151 Code

of Civil Procedure as also CMP No. 9051 of 2017, filed under

Section 13-B of Hindu Marriage Act is allowed and divorce

petition filed by appellant Section 13 of the Act, is converted into

petition under Section 13-B of the Hindu Marriage Act, and in

view of the peculiar facts and circumstances, as enumerated

hereinabove, as well as law down by the Hon’ble Apex Court, the

marriage between the parties is ordered to be dissolved by way of

mutual consent. Registry is directed to draw a decree of

dissolution of marriage by mutual consent accordingly.

15. Needless to say, both the parties shall abide by terms

and conditions contained in the compromise and all the cases

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pending before the Court(s) below shall be withdrawn by the

parties, immediately, in terms of the compromise. Apart from

.

above, Mr. Nikhil Sharma, shall make payment qua the alimony

i.e. Rs. 5:00 lakh, as agreed by him within the time frame as

stipulated in the joint petition filed under Section 13-B of the

Hindu Marriage Act, failing which he shall render himself liable

for penal consequences as well as contempt of the Court.

16. The instant appeal is disposed of in the aforesaid

terms. Pending applications, if any, are also disposed of.

(Sandeep Sharma)
10th October, 2017 Judge

(shankar)

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