IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO(HMA) No. 132 of 2018
a/w CMP No. 4194 of 2018

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Decided on: May 8, 2018

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Susheel ..Appellant
Versus

Anju ……….Respondent
_
Coram:

Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.

_
For the appellant : Mr. H.R. Jhingta, Advocate.

For the respondent : Ms. Doshi Negi, vice Counsel.
_

Sandeep Sharma, Judge:(oral)

Instant appeal filed under Section 28 of the Hindu

Marriage Act, 1955 is directed against judgment dated

26.12.2017 passed by learned Additional District Judge-II, Solan,

District Solan, Himachal Pradesh in HMA No. 6ADJ-II/3 of 2015

(Reg. No. 114/2014), whereby petition under Section 13 of Hindu

Marriage Act having been filed by petitioner for dissolution of

marriage by a decree of divorce came to be dismissed.

2. Precisely, the facts of the case as emerge from the

record are that marriage of petitioner and respondent was

solemnized on 27.5.205 as per Hindu rites and customs. Parties

cohabited together at place Dagshai as husband and wife and

from this wedlock a child named Harsh was born on 27.10.2007,

1
Whether the reporters of the local papers may be allowed to see the judgment?

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who is presently studying in Army Public School, Dagshai in the

6th Standard and is living with the petitioner (husband).

.

Respondent (wife) allegedly left company of the child two years

back. Since parties to the lis failed to live peacefully together,

they started living separately and in the year 2014, a petition

under Section 13 of the Hindu Marriage Act for dissolution of

marriage by way of decree of divorce on the grounds of cruelty

came to be instituted in the court of learned Additional District

Judge-II, Solan, Himachal Pradesh on behalf of the petitioner,

however, the fact remains that the same was dismissed. In the

aforesaid background, petitioner approached this Court in the

instant proceedings praying therein for decree of divorce after

setting aside judgment passed by Additional District Judge-II,

Solan.

3. On 28.3.2018, when notice was issued to the

respondent, learned counsel representing the appellant-petitioner

apprised this Court with regard to possibility of compromise inter

se parties. Accordingly, this Court specifically directed the

respondent to remain present in the Court on the next date of

hearing.

4. Today, 8.5.2018, during proceedings of the case, this

Court having interacted with the parties made sincere efforts to

ensure reconciliation between the parties but unfortunately, both

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the parties expressed their unwillingness to join company of each

other and both the petitioner and respondent categorically stated

.

before this Court that they are ready and willing to get their

marriage dissolved by way of mutual consent. This Court, solely

with a view to give some more time to reconsider their decision,

adjourned the matter to post-lunch session but in vain. Later on,

learned counsel for the parties informed this Court that parties

have mutually agreed to get their marriage dissolved by mutual

consent and they also placed before this Court, an application

filed for divorce by way of mutual consent under Section 13B of

Hindu Marriage Act read with Section 151 CPC, praying therein

to grant a decree of divorce after converting the present appeal

into a petition under Section 13B for grant of divorce with mutual

consent. Application is taken on record and registered as CMP

No. 4194 of 2018.

5. In the aforesaid application filed under Section 13B of

the Hindu Marriage Act, parties, while praying jointly for

dissolution of their marriage by way of mutual consent have

averred that they are living separately from each other for the

last five years at their respective addresses mentioned in the

memo of parties and during this period there has been no

cohabitation as such, there is no relationship of husband-wife

between them. It has been further stated in the application that

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parties have mutually agreed for their marriage to be dissolved

because there has not been any cohabitation between them and

.

there is no likelihood of their cohabiting in future and their

marriage has broken beyond repair.

6. In view of the settlement arrived inter se parties,

petitioner has agreed to pay a sum of Rs. 4,50,000/- to the

respondent as one time settlement, whereas respondent has

specifically agreed that she will not claim any maintenance in

future from the petitioner and shall have no claim to the property

of the petitioner. Both the parties have mutually agreed that their

son namely Harsh Sharma, who is at present with the petitioner

and studying in Army Public School in 6th Standard, shall remain

with the petitioner but respondent shall have right to visit him in

a week during holidays.

7. This Court with a view to ascertain the correctness and

genuineness of the averments made by the learned counsel

representing the parties as well as averments contained in joint

application filed under Section 13 B of the Hindu Marriage Act

also recorded statements of both the parties on oath, who

categorically deposed before the Court that they have entered into

compromise of their own volition and without there being any

pressure or coercion and mutually decided to dissolve their

marriage by way of mutual consent. Respondent namely Anju

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categorically stated before this Court that she has received

Rs.4,50,000/- on account of permanent alimony from petitioner

.

and she will not claim any maintenance from petitioner in future

and shall have no claim to the property of the petitioner. Their

statements are taken on record.

8. Having taken note of averments contained in joint

application filed under Section 13B of Hindu Marriage Act read

with Section 151 CPC, as well as statements of the parties, this

court sees no impediment in accepting prayer made in the

application. There is appears to no possibility of reproachment or

conciliation between the parties and as such, prayer for grant of

divorce by way of mutual consent deserves to be considered by

this Court by converting instant appeal of divorce to petition

under Section 13B of Hindu Marriage Act.

9. Accordingly, for the reasons and circumstances

narrated herein above, present appeal is ordered to be converted

into a petition under Section 13B of Hindu Marriage Act. Since

both the parties are living separately for the last five years and

they have been litigating with each other since the year 2014,

statutory period of six months as envisaged under Section 13B of

the Act for grant of divorce by way of mutual consent, can be

waived, especially when there is no possibility of rapprochement

of the parties and marriage has broken beyond repair. In this

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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, (2011)14 SCC 614, wherein the Hon’ble

Apex Court has held as under:

12.” 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. Reliance is also placed on a judgment rendered by

Hon’ble Apex Court in Priyanka Khanna v. Amit Khanna, (2011)

15 SCC 612, wherein Hon’ble Apex Court has 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. 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.”

11. In the instant case also, statutory period of six months

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

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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?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the
parties?

v) Have the parties attended mediation/ conciliation?

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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
decisive. The Court has to have the regard to the context,

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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 :

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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.

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 chances of

alternative rehabilitation.”

12. Consequently, in view of the detailed discussion made

hereinabove, Cr.MP No.4194 of 2018 filed under Section 13B of

the Hindu Marriage Act read with section 151 CPC, is allowed

and in view of the peculiar facts and circumstances, as

enumerated hereinabove, as well as law laid down by Hon’ble

Apex Court, the marriage between the parties is ordered to be

dissolved by mutual consent. Registry is directed to draw a

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decree of dissolution of marriage by mutual consent accordingly.

Terms and conditions contained in the application, referred

.

hereinabove, shall also form part of the decree

13. Needless to say, both the parties shall abide by all the

terms and conditions contained in the application.

14. The instant appeal alongwith CMP No. 4194 of 2018 is

disposed of in the aforesaid terms. Pending applications, if any,

are also disposed of.

(Sandeep Sharma)
r Judge
May 8, 2018

(vikrant)

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