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Arpit Garg vs Ayushi Jaiswal on 6 May, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 32 Reserved

Case :- FIRST APPEAL No. – 115 of 2019

Appellant :- Arpit Garg

Respondent :- Ayushi Jaiswal

Counsel for Appellant :- Vikrant Rana

Counsel for Respondent :- Dhirendra Pratap Singh,Tej Pratap Singh

Hon’ble Shashi Kant Gupta,J.

Hon’ble Pradeep Kumar Srivastava,J.

(Delivered by Hon. Shashi Kant Gupta, J.)

1. This appeal has been filed against the order dated 23.01.2019 passed by the Principal Judge, Family Court, Allahabad in Misc. Case No. 01 of 2019 (Smt. Ayushi Jaiswal Versus Arpit Garg) whereby the application jointly filed by the parties under Section 13B of the Hindu Marriage Act for mutual divorce has been rejected and the divorce petition was returned on the ground as having been filed within less than a period of one year of separation of the parties.

2. A perusal of the record shows that the marriage was solemnized on 09.07.2018 between the parties but soon thereafter, their marital relations got strained as a result whereof they entered into a compromise on 20.12.2018 to seek a mutual divorce under Section 13B of the Hindu Marriage Act, 1955 (in short ” the Act”). Both the parties are living separately since 12.10.2018. On 21.12.2018, a joint application under Section 13 B was filed by the parties before the court below for seeking divorce on the basis of mutual consent.

3. It is relevant to mention here that an application under Section 14 of Hindu Marriage Act has also been filed by the respondent in the aforesaid divorce petition to grant leave to present the divorce petition with mutual consent before the expiration of one year since the date of the marriage and the said application was registered as Misc. Case No. 01 of 2019. The divorce petition filed under Sectionsection 13B of the Act was rejected by order dated 23.01.2019 by the Court below as premature and the divorce petition was returned back holding that the period as prescribed under Section 13-B(1) of the Act can not be waived under the proviso to Section 14 of the Act. Hence the present appeal.

4. Learned counsel for the appellant has contended that the impugned order is based on a complete misreading of the case and misconception of the legal position relevant to the matter. It was further contended that the Court below has misinterpreted and misconstrued the provisions of Section 13-B as well as Section 14 of the Hindu Marriage Act. It was further submitted that the period of one year since the date of separation of the parties to the marriage can be waived by the Court under the proviso to Section 14 of the Act for the purpose of filing a petition under Section 13-B of the Act. When it appears that there are no chances of living together of husband and wife and their differences can not be resolved and the present case is such a case in which there are no chances of reconciliation between the parties and by rejecting the said application, the appellant and respondent have been virtually directed to suffer mental trauma and agony. He further submitted that both the parties are living separately since 12.10.2018.

5. In support of his contention, learned counsel for the petitioner has placed reliance upon the decision of the Apex Court in the case of Amardeep Singh Versus Harveen Kaur, AIR, Supreme Court 4417 and the decision of the Division Bench of the Delhi High Court in the case of Sankalp Singh Versus Prarthana Chandra decided in FAO No. 312 of 2012 on dated 01.03.2013.

6. Heard learned counsel for the appellant and perused the record as well as provisions of the SectionHindu Marriage Act particularly Sections 13, Section13-B and Section14 of the Act.

7. Before we may proceed further in the matter, it would be expedient and useful to refer to Sections 13-B and Section14 of the Hindu Marriage Act which are relevant for the purpose of deciding the present appeal are quoted herein below:-

“13-B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the SectionMarriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

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“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.”

8. Section 13B of the Act was introduced (w.e.f. 27.5.1976) by the amending Act of 1976. From a bare perusal of Section 13 B of the Hindu Marriage Act, it is evident that a petition for divorce by mutual consent can be filed before the court concerned by both the parties to a marriage together on the ground that they have been living separately for a period of one year or more and have not been able to live together and have mutually agreed that their marriage should be dissolved.

9. As it is clear from the above, Sub-section (1) of Section 13B is an enabling Section for presenting a petition for dissolution of a marriage by a decree of divorce by mutual consent.   One of the grounds provided is that the parties have been living separately for a period of one year or more and have not been able to live together. Sub-section (2) of Section 13B, however, provides the procedural steps that are required to be taken once the petition for mutual divorce has been filed and six months have expired from the date of presentation of the petition before the Court. The language is very specific and it intends that on a motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in Sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. When all the ingredients are proved a decree of divorce cannot be refused.

10. In the present case, the marriage was solemnized on 09.07.2018. Since the petition for mutual divorce was filed within less than a year of separation of parties to the marriage, the petition for divorce on the basis of mutual consent as provided under Section 13B was not maintainable. Thus, the application filed under the proviso to Section 14 of the Act was rejected for waiving the condition and the divorce petition filed on the ground of mutual consent was returned to the petitioner for filing it after expiry of one year of the separation of the parties to the marriage.

11. Learned counsel for the petitioner has submitted that proviso to sub Section (1) of Section 14 of the Hindu Marriage Act provides that the Court may upon an 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 from 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, as such, the court below has committed illegality in not considering the proviso to Section 14 of the Act in right perspective while returning the plaint. It was further submitted that the petitioner has discharged the statutory obligation imposed upon by Sections 13B and Section14 of the Act as the case of the petitioner falls within the category of the exceptional cases under the proviso to Section 14 of the Act. It was further submitted that the court below has totally overlooked the proviso to Section 14 of the Act and has not considered the question of hardship which is likely to be caused in the event of the divorce petition made by the petitioner being rejected.

12. Section 13B as introduced (w.e.f 27.5.1976) by the amending Act of 1976 is a specific provision dealing with dissolution of marriage by mutual consent provided the couple have been living separately for a period of one year or more; that they have not been able to live together and have mutually agreed that the marriage should be dissolved.

13. Learned counsel for the appellant while placing reliance upon the decision of the Delhi High Court in the case of Sankalp Singh (Supra) has vehemently argued that the proviso to Section 14(1) of the Act would be applicable in the matter and the period as envisaged under Section 13-B of one year can be waived, in case if the Trial Court arrives to a conclusion that the case of exceptional hardship or exceptional depravity is made out.

14. We have carefully perused the judgment rendered by the Delhi High Court in the case of Sankalp Singh Versus Prathana Chandra (Supra). We respectfully disagree with the view expressed by Delhi High Court as we are of the view that the proviso to Section 14 of the act is not applicable for the purpose of waiving the period of one year as provided under Section 13-B of the Act.

15. Section 13B is an independent section by itself.  There is no scope for introduction of any other qualification which the legislature  in its wisdom did not think necessary to incorporate.  In fact the provisions of Sections 13B and Section13/Section14 covers two different fields. 

16. Under Section 13 of the 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 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’ to the petitioner or ‘exceptional depravity’ on the part of the respondent.

17. The argument of the learned counsel for the petitioner is that the proviso to Section 14 would have to be read along with Section 13B of the Act whereunder the divorce has been sought by mutual consent.  The question that arises for determination by this Court is that whether Sectionsection 14 of the act qualifies Sectionsection 13 alone or does it also qualify Sectionsection 13B of the Act.

18. There can be no doubt that when Sectionsection 14 was enacted the legislature intended that Sectionsection 13 would be qualified by it and hence no statutory period was prescribed in Sectionsection 13 itself. Hence in a petition for divorce under Sectionsection 13, the statutory period for filing a petition would be governed by the provisions of Sectionsection 14.

19. However when the legislature inserted Sectionsection 13 B and introduced divorce by mutual consent in the act, it did not intend it to be qualified by Sectionsection 14 and hence proceeded to specifically prescribe a statutory period in the section itself, unlike in Sectionsection 13, where no period has been prescribed.

20. It hence transpires that Sectionsection 13 B is an independent section in so far as it statutorily prescribes time period in the section itself.

21. In our opinion if the interpretation of the learned counsel for the petitioner is accepted it would render the time provided in Sectionsection 13 B futile and render the provision otiose or nugatory to the extent it provides for the period of one year.

22. Another aspect of the matter is that the period of one year has been prescribed in Sectionsection 14 and the same is relaxed only by means of its proviso. No such proviso finds place in Sectionsection 13 B. The contention of the counsel for the petitioner that the proviso of Sectionsection 14 should be applied to Sectionsection 13 B is liable to be rejected.

23. It is settled law that a proviso does not travel beyond the provision to which it is a proviso. In the words of Bhagwati J:. ‘that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.’

24. The scheme of the Act clearly indicates that Section 13B cannot be read along with Section 14 of the Act and the proviso to Sectionsection 14 by no stretch of imagination will be applicable in the matters of mutual divorce by consent. The period of separation of one year as provided under Section 13B is mandatory for dissolving the marriage by mutual consent. The statutory conditions have to be adhered to for seeking a divorce by way of mutual consent. 

25. The petition for divorce by mutual consent must be presented to the court jointly by both the parties and not by one party stating that the other party to the marriage has given his or her consent to the dissolution of the marriage by decree of the court.  The motion before the court for hearing the petition should also be by both parties.  The court will not proceed to do so unless both the parties have resolved to seek divorce by mutual consent.

26. The decision of the Apex Court in the case of Amardeep Singh Versus Harveen Kaur (Supra) is applicable in the present matter. The question arose for consideration before the Apex Court was whether the minimum period of six months stipulated under Section 13B(2) of the Act for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations. The Apex Court after considering the various provisions of the Act and the case laws in this regard has interalia held as follows:-

“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 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.

27. It is notable that the Apex Court in the aforementioned judgment has not permitted either to the Court below or the parties to waive the statutory period of one year as provided under Section 13-B(1) of the Act. In fact, the Apex Court while disposing of the appeal has observed that the Court dealing with the matter should be satisfied that a case is made out to waive the statutory period under Section 13-B(2) of the Act and should also be satisfied that statutory period of one year as provided under Section 13-B(1) of the separation of the parties is already over before the first motion itself. Thus, the Apex Court was of the firm opinion that the period of one year as provided under Section 13-B(1) should be over before the presentation of the divorce petition on mutual consent before the Court below and has not held that the period of one year as provided under Section 13-B(1) is directory in nature and not mandatory. Thus, the view taken by the Apex Court in the case of Amardeep Singh Vs. Harveen Kaur (Supra) does not support the case of the appellant and runs counter to view expressed by the Delhi High Court in the case of Sankalp Singh (Supra).

28. The time period stipulated by the legislature as provided under Section 13B has been so fixed that during this time, the parties get time for introspection.  The period prescribed under Section 13-B(1) of the Act is mandatory and cannot be waived.  The language of the statue is clear and plain, admitting no ambiguity, and therefore assigned the plain meaning which naturally flows from the reading thereof and leads to a singular construction. The language of the Section 13-B(1) is clear and do not speak of any discretion to be used by the courts for curtailing the limit.  The proviso to Section 14 of the Act is intended to mollify the effect of one year limitation when the divorce is sought under “Section 13” of the Act. Hence, the contention of the learned counsel for the petitioner that proviso to Section 14 would qualify Section 13 B of the Act has no merit.

29. In view of the above, we do not find any illegality or infirmity in the impugned order. The petition filed within less than one year of marriage on the ground of mutual consent is not at all maintainable and the court below was fully justified in not entertaining the petition filed for divorce by mutual consent as premature with a direction for return of the divorce petition to the petitioner. We do not find any fault with the approach adopted by the court below which may warrant any interference by this Court.

30. In the result, this appeal is dismissed.

Order Date :- 06.05.2019

Arun

 

 

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