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Archi Agarwal And Another vs Principal Judge,Family Court … on 29 March, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Reserved

FIRST APPEAL NO.27 OF 2019

Archi Agarwal and another ……Appellant

Versus

Principal Judge, Family Court, Lucknow ……Opposite party

Hon’ble Dr. Devendra kumar Arora, J.

Hon’ble Narendra Kumar Johari, J.

We ruined each other by being together!

We destroyed each other’s dreams!!

Archi Agarwal and Pratyush Chaube, who are the wife and husband, have jointly approached this Court under Section 19 (1) of the Family Courts Act, 1984, questioning the validity and correctness of the order dated 08.01.2019 passed by the Principal Judge, Family Court, Lucknow, whereby the application preferred by the appellants under Section 14 of the Hindu Marriage Act, 1955 (hereinafter referred to as “1955 Act”) for exemption/waiver of one year period from the date of marriage for dissolution of marriage under Section 13B of the 1955 Act has been rejected.

According to the appellants, their marriage was solemnized on 06.05.2018 as per the Hindu rites and rituals but on account of non-consummation of marriage, both the appellants started residing separately since 29.06.2018. Without there being any undue influence, threat and coercion, the couple decided to dissolve their marriage by a decree of divorce. Consequently, they preferred a petition under Section 13-B of the 1995 Act for divorce out of their own free will along with an application under Section 14 of the 1955 Act for seeking exemption of one year prescribed for presentation of a divorce petition. However, the application filed by the appellants under Section 14 has been rejected by the Principal Judge, Family Court by the impugned order.

Hence the instant first appeal.

It has been contended by the learned Counsel for the appellants that the Principal Judge, Family Court while passing the order dated 08.01.2019 has wrongly relied upon the judgment of the Apex Court rendered in the case of Amardeep Singh (supra) as it does not deal with Section 14 of the 1955 Act. As a matter of fact, the said judgment has been passed in respect of waiver of six months period as prescribed in Section 13-B between first and second motion. The Principal Judge, Family Court has wrongly held that the application under Section- 14 is not in accordance with the law and rejected the same.

Learned Counsel for the appellants has lastly submitted that there is no chance of reconciliation between the parties due to their ideological differences as also after solemnization of marriage, the marriage has not been consummated by the appellants and they are not living as husband and wife since 29.6.2018. i.e. since last nine months.

We have examined the submissions of learned Counsel for the appellants and perused the record.

Under section 13 of the 1955 Act marriage can be dissolved by decree of divorce on the various grounds enumerated therein and the same has been further qualified by Section 14 that no petition for divorce to be presented within one year of the marriage. However, an exception has been carved out by inserting a proviso in Section 14, with an intention to mollify the effect of the one year’s limit in very exceptional cases as the proviso to Section 14 of the HM Act engrafts a very important qualification on the general rule laid down in the section that no petition for dissolution of marriage by a decree of divorce can be entertained by the court before the statutory period expires. It enables the court in the exercise of its discretion to grant leave to present such petition before the expiry of the one year’s limit in a case of ‘exceptional hardship’ or ‘exceptional depravity’ to the appellants.

Insofar as reliance placed by the Principal Judge, Family Court in Amardeep Singh (supra) while passing the impugned order is concerned, we find that waiver of the waiting period prescribed in Section 13B (2) of 1955 Act has been considered by the Apex Court in Amardeep Singh (supra), wherein Section 13B (2) has been interpreted to be procedural in nature, the spirit of the said provision has been highlighted and the Court observed that in cases where the marriage has irretrievably broken down, the waiting period can be waived by the court to enable parties to rehabilitate themselves and start their lives afresh. It is the underlying object of the said provision that has prevailed on the Apex Court to hold that where a court is satisfied that a case for waiver of the statutory cooling period under Section 13B(2) of the 1955 Act is made out, it may waive the said period in certain circumstances. In the light of the above decision, wherein the waiting period prescribed in Section 13B(2) of the 1955 Act has been declared to be directory in nature and not mandatory, the parties have the option of jointly approaching the court for waiving the said waiting period, which request can be considered and allowed by the court only if it satisfies the parameters laid down in the said decision.

On the other hand, section 14 of the Act empowers the court to permit presentation of the petition before one year from the date of marriage where the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. Section 14 reads as under:-

“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:

Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the court at the hearing of the petition that petitioner obtained leave to present the petition by any mis-representation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”

On a plain reading of the said section, it is apparent that the said section is on the statute book with a specific purpose of preventing hasty recourse to judicial process for dissolution of marriage and for the parties to aim at reconciliation and make effort to save their marriage. However, it also cannot be disregarded that the proviso to the said section gives the discretion to the court to allow the party to present a petition for divorce before expiry of one year period from the date of marriage on being satisfied that the case is of extreme depravity on the part of the respondent or extreme hardship to the petitioner. Even sub section (2) of Section 14 of the Act provides leave for presentation of petition before the expiry of one year period. Hence, it cannot be said that the presentation of petition of divorce before the expiry of one year is completely barred as the proviso comes to the rescue of exceptional cases giving them room and it is a decision to be made by the court on the merits of the case. Hence, the learned trial court fell in grave error in proceeding on the premise that the petition cannot be permitted to be presented before period of one year from the date of marriage.

It may be noted that the expressions “exceptional hardships” and “exceptional depravity” have not been explained in the Act. Hence where the petitioner is faced with such hardships that his or her life has turned to be a complete hell or the respondent has committed such a heinous moral offence that it has become completely intolerable to the petitioner it would be possible to pass a decree for divorce without waiting for the expiry of the stipulated period of one year.

At this juncture, it would be useful to mention that in the case of Manish Sirohi versus Smt. Meenakshi; AIR 2007 All. 211, the husband made an application for divorce and the wife took a stand in the written statement that she is not inclined to continue marital relationship with her husband. However, the said application was rejected by the court below on the ground that as per Section 14 of the Act, court cannot entertain any petition for dissolution of marriage unless at the date of presentation of the petition one year has elapsed from the date of the marriage. When the matter reached to the High Court, it upset the order of court below and held as under:-

“we have gone through the provision contained under the proviso to Section 14 of the Act and we find that the High Court can allow to present the petition before lapse of one year from the date of marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. It appears to us that when immediately after marriage no marital relationship developed amongst themselves and they are voluntarily inclined to withdraw relationship, their life should not be allowed to be deserted. When differences have occurred which cannot be compromised if at this stage they are separated, they can be able to enjoy their happy marital life elsewhere. Continuance of the litigation will cause mental and physical harassment to them unnecessarily when both of them are not inclined to continue with the relationship at all. Both the parties have withdrawn their allegations and counter allegations against each other.”

In catena of cases relating to matrimonial dispute, the Apex court has observed that matrimonial disputes have to be decided by Courts in a pragmatic manner keeping in view the ground realities. For this purpose a host of facts have to be taken into consideration and the most important being whether the marriage can be saved and the husband and wife can live together happily and maintain a proper atmosphere at home for the upbringing of their offspring.

Having gone through the provision contained under the proviso to Section 14 of the 1955 Act, we find that this Court can allow to present the application/petition before lapse of one year from the date of marriage on the ground that the case is one of exceptional hardship to the appellants or of exceptional depravity on the part of the respondent. It appears that when immediately after marriage no marital relationship developed amongst the appellants and they are voluntarily inclined to withdraw relationship, their life should not be allowed to be deserted. In other words when differences have occurred which cannot be compromised and if at this stage they are separated, they would be able to enjoy their happy marital life elsewhere. In our view, continuance of litigation will cause mental and physical harassment to them unnecessarily when both of them are not inclined to continue with the relationship at all . Therefore, it is a fit case to apply the proviso to Section 14 of 1955 Act in appeal being continuance of original proceeding.

In the present case, the appellants have filed joint application for divorce under Section 13 of the 1955 Act along with application for exemption under Section 14 of the Act. The Principal Judge, Family Court has rejected both the applications placing reliance onAmardeep Singh’s case (supra).

Considering the facts and circumstances of the case, we are of the view that the Principal Judge, Family Court has wrongly applied the ratio laid down by the Apex Court in Amardeep Singh (supra), and completely overlooked the fact that the said judgment is not applicable in respect of an application under Section 14 of Hindu Marriage Act.

We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

Following the principle of ‘live and let live’ and the aforesaid legal position, it is desirable and expedient in the interest of justice to grant a decree of divorce when both the parties are present and have jointly filed the instant appeal.

For the reasons aforesaid, the appeal is allowed and the impugned judgment dated 8.1.2019 passed by the Principal Judge, Family Court, Lucknow in Misc. Case No. 19/2019 is hereby set-aside and a decree of divorce is granted without remitting the matter to the court below unnecessarily in the above circumstances.

Order Date :29.03.2019

akverma/MH

 

 

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