IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO(HMA) No. 432 of 2018
Decided on: November 13, 2018

.

_

Himanshu Nagpal .. Appellant
Versus
Palak ……….Respondent

_
Coram:

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

_

For the appellant : Mr. K.D. Sood, Senior Advocate
with Mr. Sanjeev Sood, Advocate.

For the respondent :
Mr. Ramakant Sharma, Senior
Advocate with Ms. Devyani
r Sharma, Advocate.

_

Sandeep Sharma, Judge:(oral)

By way of present appeal filed under S. 28 of the Hindu

Marriage Act (hereinafter, ‘Act’), challenge has been laid to order

dated 22.5.2018 passed by the learned District Judge, Kangra at

Dharamshala in HMA Case No. 09/III/2018, whereby joint

petition having been filed on behalf of the appellant and

respondent, under S. 13B(2) of the Act, for dissolution of

marriage by a decree of divorce with mutual consent, came to be

dismissed.

2. Briefly stated the facts, as emerge from the record are

that the marriage between the parties was solemnized on

14.10.2016 at Budhamal Castle, Palampur, Tehsil Palampur,

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

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District Kangra, H.P., as per Hindu rites and customs but they

were not able to live together for long on account of certain

.

differences and as such, they, of their own volition and without

there being any undue pressure, filed a joint petition under S.

13B(2) of the Act, praying therein for dissolution of their marriage

by way of decree of divorce with mutual consent. One of the

parties i.e. appellant-husband, Himanshu Nagpal, who resides

abroad, executed a Special Power of Attorney authorizing his

father, Shri Surya Prakash Nagpal, to move a joint petition under

S. 13B of the Act, alongwith his wife, Palak Nagpal before the

learned Court below, however, the fact remains that the learned

Court below rejected the petition vide impugned order dated

22.5.2018, on the ground of maintainability. Learned District

Judge concluded that since the petition on behalf of appellant

was signed by his father, being his attorney, same could not be

accepted. In the aforesaid background, parties have approached

this court by way of instant appeal, laying therein challenge to

the aforesaid order passed by the learned District Judge, praying

therein for dissolution of their marriage by way of decree of

divorce with mutual consent, after setting aside the impugned

order passed by the court below.

3. Before adverting to the factual matrix of the case, it may

be noticed that on the last date of hearing i.e. 6.11.2018,

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respondent-Palak, who had come present with her father,

categorically stated before this court that she has no objection in

.

case prayer made in the petition is accepted and marriage inter

se parties is ordered to be dissolved with mutual consent,

however, she had stated that before passing a decree of divorce,

amount agreed to be paid to her in terms of compromise, may be

paid to her. On the last date of hearing, parties also placed on

record, settlement deed, wherein appellant has agreed to pay a

sum of `8.00 Lakh as permanent alimony to his wife, Palak.

Similarly, respondent also stated that she has received all the

dowry articles as per agreed terms and she has no claim against

the appellant and she shall withdraw all the cases lodged by her

against the appellant and/or his family members.

4. Today, Ms. Palak (respondent), on oath, stated before

this court that she has received a sum of `8.00 Lakh as per

agreed terms towards full and final settlement and now she has

no claim against the appellant. She further stated that she shall

be withdrawing all the case pending in various courts of law,

against the appellant as well as his family members, within a

period of one week. She categorically stated before this court that

she has no objection in case prayer having been made in the

instant appeal, which bears her signatures, is accepted and

marriage inter se parties is ordered to be dissolved by way of

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decree of divorce with mutual consent. Her statement is taken on

record. The settlement deed is also made part of the record.

.

5. Now, the question, which remains to be determined in

the instant proceedings by this court is, whether petition under

S. 13B(2) under the signatures of father of the appellant, being

his attorney, is maintainable or not? Undisputedly, petition

under S. 13B on behalf of the appellant has been signed by his

father being his attorney, whereas, respondent has signed the

petition herself. Special Power of Attorney placed on record

(available at page-23 of the paper-book), which, otherwise, has

not been disputed by the respondent, clearly suggests that the

appellant has authorised his father to sign the petition under

S.13B of the Act on his behalf for grant of divorce by mutual

consent from his wife, Ms. Palak.

6. S. 13B of the Act, provides that a petition for dissolution

of marriage by a decree of divorce can be presented to the District

Court by both the parties to the marriage together on the ground

that they have been living separately for a period of one year or

more and they have not been able to live together and they have

mutually agreed that their marriage be ordered to be dissolved on

the motion of both the parties. Careful reading of S. 13B, does

not suggest that personal appearance of the parties seeking

divorce by way of mutual consent is mandatory, rather, it has

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been specifically provided under S. 13B, that the petition for

dissolution of marriage by way of decree of divorce can be

.

presented to the District Court by both the parties to the

marriage together and there is no specific condition/bar as such

that such a petition can not be presented through attorney.

There cannot be any dispute with regard to the fact that at the

time of considering prayer for grant of divorce, if any, under S.

13B, by way of mutual consent, court is required to record its

satisfaction about the consent in terms of provisions of the Act

but appearance of both the parties or their consent can also be

through their duly constituted attorneys, especially when there is

no specific bar contained under the Act, however, in the absence

of parties, especially where attorneys appear on behalf of the

parties, courts are required to be more cautious and vigilant,

while recording their satisfaction about the consent. But

definitely, petition for dissolution of marriage by way of decree of

divorce with mutual consent cannot be rejected merely on the

ground that one of the parties did not appear in person.

7. Reliance is placed on a judgment delivered by the

Andhra Pradesh High Court (D.B) in Padmakiran Rao (Mrs.)

Versus B. Venkateramana Rao, 1996(2) HLR 271, wherein it

has been held that the word ‘hearing’ is often used in a broad

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sense which need not always mean personal hearing. The High

Court held as under:

.

“2. Relying on the wording – “after hearing the parties” in

Sub-section (2) of Section 13-B, the learned Subordinate
Judge took the view that both the parties to the marriage
should necessarily be present in the Court for

examination and the filing of affidavit will not be a
substitute for that requirement. The learned Judge
observed that unless the parties are personally present, it
would be difficult for the Court to assess whether they

have changed their mind since the date of filing the
petition. We do not think that this is a correct view to be
taken. ‘Hearing’ does not necessarily mean that both

parties have to be examined. The word ‘hearing’ is often

used in a broad sense which need not always mean
personal hearing. In any case, the evidence of one of the
parties i.e., the appellant herein was recorded by the
Court. Thus, even if the word ‘hearing’ is construed in a

literal sense that requirement must be deemed to have
been satisfied in the instant case in view of the
examination of the appellant. On the husband’s side,

there is evidence in the form of an affidavit which can be
legitimately taken into account in view of Order XIX Rule

1 C.P.C. It is not as if the affidavit has been doubted or
the other party wanted to cross-examine the deponent of

the affidavit. When there are no suspicious circumstances
or any particular reason to think that the averments in
the affidavit may not be true, there is absolutely no
reason why the Court should not act on the affidavit filed
by one of the parties. The learned Judge fell into error of
law in observing that he cannot look into the affidavit at
all. There is also a valid reason for non-attendance of the
respondent in the Court. In the circumstances, the order

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of the lower Court is set aside and the appeal is allowed.
We declare that the marriage between the parties shall
stand dissolved with effect from the date of this judgment

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and a decree for divorce be passed. We make no order as

to costs.”

8. Reliance is also placed upon Navdeep Kaur Vs.

Maninder Singh Ahluwalia 2010(2) Civil Court Cases 383 (PH),

wherein the High Court of Punjab and Haryana has held as

under:

“8. It is a case in which the parties lived together only for a
period of three months. After the marriage on 7.1.2007, the

divorce petition by way of mutual consent was filed on 6.1.2009

meaning thereby that admittedly the parties were residing
separately for the last more than one year at the time of
presentation of petition. It is also not in dispute that the
respondent husband had gone abroad and he had not come

back since then. The petition was filed on behalf of the husband
by his father as his attorney. Even on the first date of hearing, it
is the joint statement of the father of the husband respondent,

Dharam Singh which was recorded as his attorney and the
appellant Navdeep Kaur. The same is extracted below:–

“I, Dharam Singh, is the GPA of my son Mainder Singh
Ahluwalia, vide GPA, the copy of which is Ex. PA (Original
seen and returned). Our marriage of the parties was

solemnised on 07-01-2007 at Chandigarh as per Sikh
rites and ceremonies. On account of differences of
temperament, it was not possible to live together as
husband and wife and they are living separately since 08-

04-2007. Out of this wed lock, no child was born. The
matter was amicably settled between the parties and a
compromise deed is Ex. PB and as per the compromise,
petitioner No. 1 will pay a sum of Rs. 2,35,000/- to
petitioner No. 2 and as per settlement, a Demand draft of
Rs. 1,35,000/- No. 407218. dated 22.12.2008, drawn on
SBOP, payable at Chandigarh, has been handed over to

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petitioner No. 2 and remaining amount of Rs. 1,00,000/-
will be paid on the next date of hearing and petitioner No.
2 withdraw all the criminal cases filed by her against the
petitioner No. 1 and his family and in future will not file

.

any sort of litigation against them and will not claim any
maintenance from petitioner No. 1 in future for herself.

The contents mentioned in the petition are correct and are
signed by us. The marriage may kindly be dissolved.”

11. The issue which arises for consideration before this court
is as to whether it is mandatory for the parties to appear in
person in court at the time of filing of petition for divorce by way
of mutual consent and also at the time of second motion or the

attorney can be authorised to appear?

18. A perusal of the impugned judgment of the learned court
below shows that the learned court below dismissed the petition
on the ground that the parties had not appeared in person. It

had not recorded any finding as regards the petition being not

bonafide or that the averments made in the petition were not
true and correct and further that the consent of either of the
parties had been obtained by force, fraud or undue influence

which was sine-qua-non for consideration of a petition for
divorce by way of mutual consent.

19. In view of the enunciation of law, as referred to above and

also what is provided in Order 3 CPC, in my opinion, once the
court is not doubting the genuineness of the contents stated in

the petition for divorce by way of mutual consent, and one of the
parties are represented by an attorney, who is none else than
the father of the respondent-husband, who has fiduciary

relations with the respondent/husband and cannot be expected
to act against the interest of his son, such a petition cannot be
rejected merely on the ground that one of the parties did not
appear in person. The provisions of Section 13-B of the Act
cannot be read to mean that personal appearance of the parties
is mandatory. Procedural law is subservient to justice.
Appearance of parties would include appearance through duly

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constituted attorneys. The paramount thing which is required to
be considered by the learned court below is the correctness of
the contents of the petition filed and also to see that consent of

.

either of the parties has not been obtained by way of force, fraud

or undue influence. Parties are not required to be called in court
only to see their faces. However, in the absence of the parties,
where the attorney appears, the courts have to be more cautious

and vigilant in recording its satisfaction about the consent in
terms of the provisions of the Act. It may depend on the facts of
a case, considering who is appearing as attorney.

9.

In the aforesaid judgment, High Court of Punjab and

Haryana has categorically held that provisions of S. 13B can not

be read to mean that personal appearance of the parties is

mandatory. Procedural law is subservient to justice and

appearance of parties would include appearance through their

duly constituted attorneys, because paramount thing, which is

required to be considered by the court is correctness of the

contents of petition filed and also to see that consent of either of

the parties has not been obtained by way of force, fraud or undue

influence.

10. In the case at hand, one of the parties i.e. appellant is

unable to visit India that is why he executed a Special Power of

Attorney in favour of his father, authorizing him to sign/file the

petition under S. 13B on his behalf praying therein for

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dissolution of their marriage by way of decree of divorce with

mutual consent.

.

11. Leaving everything aside, respondent-wife has no

objection whatsoever to the prayer having been made on behalf of

the appellant, rather, she fairly stated before this court that she

of her own volition without there being any external pressure has

entered into compromise with her husband (appellant), whereby

they mutually agreed to dissolve their marriage by way of mutual

consent. As has been taken note herein above, parties have

placed on record, settlement deed, whereby respondent has

received a sum of `8.00 Lakh as permanent alimony from the

appellant, as such, veracity and correctness of the petition

presented by father of the appellant being his attorney, can not

be doubted merely on the ground that same has been presented

through an attorney.

12. Paramount consideration of the court, while recording

its satisfaction is to ensure that consent of either of the parties

has not been obtained by way of force, fraud or undue influence.

This court having carefully perused the settlement deed placed

on record and statement of respondent-wife, recorded on oath, is

convinced and satisfied that the contents of the joint petition filed

under S. 13B for divorce by way of mutual consent and also that

of consent of either of the parties have not been obtained by way

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of force, fraud or undue influence as such, prayer made in the

petition under S.13B of the Act, deserves to be accepted,

.

especially when there is 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.

13. Since both the parties are living separately for the last

two 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 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.”

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14. 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.”

15. 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

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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?

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

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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,
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

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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 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.

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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.”

16. Consequently, in view of the detailed discussion made

hereinabove, present appeal is allowed. Order dated 22.5.2018

passed by the learned District Judge, Kangra at Dharamshala in

HMA Case No. 09/III/2018 is quashed and set aside. Joint

petition filed by the parties under Section 13B(2) of the Hindu

Marriage Act is allowed. Marriage between the parties is ordered

to be dissolved by mutual consent. Registry is directed to draw a

decree of dissolution of marriage by mutual consent accordingly.

Terms and conditions contained in the settlement deed, referred

hereinabove, shall also form part of the decree. Needless to say,

both the parties shall abide by all the terms and conditions

contained in the settlement deed.

Pending applications, if any, are also disposed of.

(Sandeep Sharma)
Judge
November 13, 2018
(vikrant)

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