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________________________________________________________________ vs Des Raj on 6 November, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No. 271 of 2017
a/w CMP No. 10699 of 2018

.

Decided on: October 31, 2018

_
Bharti Kapoor .. Petitioner
Versus

Des Raj ……….Respondent
_
Coram:

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

_
For the petitioner : Ms. Veena Sharma, Advocate.

For the respondent : Mr. Dalip K. Sharma, Advocate.
_

Sandeep Sharma, Judge:(oral)

Instant petition under S. 24 read with S. 151 CPC

has been filed on behalf of the petitioner, Smt. Bharti Kapoor for

transfer of HMA Case No. 03 of 2017 titled Des Raj vs. Bharti

Kapoor, pending adjudication before the learned Civil Judge

(Senior Division), Chamba, Himachal Pradesh to the court of

learned Civil Judge, Bilaspur, Himachal Pradesh.

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

record are that marriage of petitioner and respondent was

solemnized on 28.4.2015 as per Hindu rites and customs. Parties

cohabited together as husband and wife cordially for some, but

ultimately disputes cropped up between them resulting into

institution of cross-cases by both the sides. Petitioner Bharti

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

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Kapoor filed Case No. 16 of 2016 under Report No. 282/3 of 2016

in the court of Judicial Magistrate 1st Class, Bilaspur and

.

respondent filed a petition under S. 9 of Hindu Marriage Act, for

restitution of conjugal rights, for the transfer of which, present

petition came to be filed by the petitioner-Bharti Kapoor.

3. On 23.8.2017, learned counsel representing the

respondent stated that dispute can be amicably resolved if

parties are persuaded to do so and as such, matter was posted

for 6.9.2017, on which two months’ time was given to the parties

to explore possibility their residing together. Matter came to be

listed on various dates, but the efforts put by both the sides as

also this court, to resolve the disputes between the parties, failed

to bear any fruits and as such, on 17.4.2018, it was informed

that the parties have decided to part their ways and to get the

marriage dissolved by a decree of divorce by entering into a

compromise on the same date i.e. 17.4.2018. As per compromise,

petitioner Bharti Kapoor has conceded to get the marriage

dissolved in lieu of one time alimony of `21.00 Lakh, payable in

two installments i.e. `10.50 Lakh on or before 30.5.2018 and rest

on or before 31.10.2018.

4. Today, i.e. 31.10.2018, during the proceedings of the

case, petitioner Bharti Kapoor acknowledged receipt of `21.00

lakh in two installments i.e. `10.50 vide cheque on 31.5.2018

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and `10.50 Lakh today during the proceedings of the case before

this Court. Statements of both the parties, on oath, were

.

recorded as also that of the witnesses to the compromise dated

17.4.2018, which are made part of the court file. Parties by way

of compromise have undertaken to withdraw all the cases

instituted against each other. Parties have also filed an

application under S. 13-B(1) of the Hindu Marriage Act for

granting decree of divorce by mutual consent thereby dissolving

their marriage alongwith compromise dated 17.4.2018, which is

taken on record. Registry to assign number to the same.

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

many 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 parties have

mutually agreed for their marriage to be dissolved because there

has been no cohabitation between them and there is no

likelihood of their cohabiting in future and their marriage has

broken beyond repair.

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

respondent has paid a sum of Rs.21.00 Lakh to the petitioner 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 to withdraw

cross-cases instituted by them against each other.

7. Having taken note of averments contained in joint

application filed under Section 13B of Hindu Marriage Act, 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 petition to petition under Section 13B of Hindu Marriage

Act.

8. Accordingly, for the reasons and circumstances

narrated herein above, present petition 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 many years and

they have been litigating with each other, 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

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there is no possibility of rapprochement of 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, (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.”

9. 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.”

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10. 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?

iii) How long they have been staying apart?

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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.

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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,
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

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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 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.”

11. Consequently, in view of the detailed discussion made

hereinabove, application filed under Section 13B of the Hindu

Marriage Act, 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

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draw a decree of dissolution of marriage by mutual consent

accordingly. Terms and conditions contained in the compromise

.

dated 17.4.2018, referred hereinabove, shall also form part of the

decree

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

terms and conditions contained in the application.

13. The instant petition alongwith the application under S.

13B(1) of the Hindu Marriage Act is disposed of in the aforesaid

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

(Sandeep Sharma)

Judge
October 31, 2018
(vikrant)

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