IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
FAO(HMA) No.359 of 2017
Date of Decision:10th October,2017
.
_
Priyanka Kaushik ….Appellant.
Versus
Nikhil Sharma ….Respondent.
_
Coram:
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Appellant Mr. Sudhir Thakur, Advocate.
For the Respondent Mr. Vinay Kuthiala, Senior Advocate, with
r Mr. Diwan Singh, Negi, Advocate.
Sandeep Sharma, Judge
Appellant being aggrieved and dissatisfied with the
judgment dated 07.07.2017, passed by learned Additional
District Judge-II, Solan, District Solan, H.P., in HMA Petition
No.33ADJ-II/3 of 2015, whereby petition having been filed by
the appellant under Section 13 of Hindu Marriage Act, 1955 for
dissolution of marriage by a decree of divorce, came to be
dismissed, has approached this Court by way of instant appeal
filed under Section 28 of the Hindu Marriage Act, 1955, praying
therein for decree of divorce after setting aside the judgment
dated 07.07.2015, passed by the learned Additional District
Judge-II, Solan, District Solan, H.P.
Whether reporters of the local papers may be allowed to see the judgment?
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2. Facts, in brief as emerge from the record are that the
marriage of appellant and respondent was solemnized on
.
28.06.2012, according to Hindu rites and customs at Hotel
Paragon Place, Solan, District Solan, H.P., and no issue was born
out of their wedlock. Since, the parties were not able to live
peacefully and cordially with each other after the marriage for
various reasons, which have been enumerated in the petition
filed before the learned Court below, appellant by way of petition
filed under Section 13 of Hindu Marriage Act, 1955, sought
dissolution of marriage by way of decree of divorce. However, fact
remains that aforesaid petition having been filed by the
appellant, came to be dismissed.
3. On 12.09.2017, when this matter came up for
admission, this Court having regard to the nature of the
litigation pending inter se the parties, summoned both the
parties in the Court, so that possibility, if any, of amicable
settlement inter se parties is explored. Vide aforesaid order, this
Court directed both the parties to remain present in Court on
10th October, 2017.
4. Today i.e.10.10.2017, during the proceedings of the
case, this Court made sincere and serious attempt to ensure
reconciliation between the parties, but unfortunately appellant,
who initiated proceedings against the respondent, expressed her
unwillingness to join the company of the respondent, who
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admittedly stated before this Court that he is ready and willing to
take the appellant back to her matrimonial house. This Court in
.
the presence of learned counsel representing the parties, made
both the parties understand the consequences of prolonged
litigation as well as their having settled the matter amicably inter
se them. But this Court after having interacted with both the
parties sees no possibility of reconciliation/rapprochement
between the parties. It may be noticed that during the
proceedings of the case, this Court solely with a view to give some
more time to the parties to reconsider their decision adjourned
the matter for post lunch session but in vain. However, lateron
learned counsel representing the parties, informed this Court
that parties have mutually agreed to get their marriage dissolved
by way of mutual consent and in this regard they filed an
application under section 151 of Code of Civil Procedure, praying
therein, for converting the divorce petition under Section 13 of
the Hindu Marriage Act into the divorce petition under Section
13-B of the Hindu Marriage Act. Besides above, parties also filed
joint petition under Section 13-B of the Hindu Marriage Act, for
dissolution of marriage by way of mutual consent.
5. In the aforesaid joint petition filed under Section 13-
B of the Hindu Marriage Act, parties while praying for dissolution
of their marriage by way of mutual consent have averred that
marriage between them could not last long and due to the
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circumstances prevailing between the parties, they got separated
from each other w.e.f. 28.11.2014 and thereafter they are living
.
separately and have no relationship. Parties also averred in the
petition, referred above, that marriage between them has
irrevocably broken down and same has virtually come to an end
emotionally and physically and there is no scope of cohabitation
in future, hence, with the intervention of the relatives and
friends, they have decided to dissolve their marriage by way of
mutual consent. Both the parties have also stated in their
petition that as per the agreement entered between them, the
respondent shall pay lump sum maintenance of `5.00 lakh to the
appellant in token of final settlement of his claim of maintenance
and as such, after making aforesaid payment, respondent shall
have no liability of any sort towards the appellant. Similarly,
appellant shall withdraw all the cases pending in any Court of
law against the respondent and shall also withdraw appeal under
Domestic Violence Act, pending before this Court in terms of
aforesaid agreement arrived inter se the parties. Now onward
relationship of wife and husband between the parties has come
to an end and they are now free to live their life independently
without any interference from each other.
6. This Court solely view a view to ascertain the
correctness and genuineness of the submissions having been
made by learned counsel for the parties as well as averments
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contained in the joint petition filed under Section 13-B of the
Hindu Marriage Act, also recorded the statements of both the
.
parties on oath, who categorically stated before this Court that
they have entered into compromise with their own volition and
without there being any external pressure, whereby they have
decided to dissolve their marriage by way of mutual consent.
Their statements are taken on record alongwith aforesaid
application. Registry is directed to assign number to the
application.
7. Appellant namely Priyanka Kaushik, stated on oath
before this Court that she has agreed to receive `5.00 Lakh as
full and final alimony, in terms of the aforesaid settlement, out of
which `.2:00 Lakh shall be paid within a period of one week and
`3:00 lakh within a period of three months thereafter. She
categorically stated before this Court that she has no objection in
case decree of divorce by way of mutual consent is passed and
she shall withdraw all the cases against the respondent pending
in any court of law including this Court.
8. Similarly, respondent namely Nikhil Sharma stated
before this Court that he has agreed to pay `5.00 lakh to the
appellant as full and final settlement for divorce, out of which
`2.00 lakh shall be paid to the appellant within a period of one
week and `3.00 lakh within three months thereafter and he will
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also withdraw his claim, if any, filed against the appellant
pertaining to matrimonial dispute.
.
9. After having taken note of aforesaid averments
contained in the application, jointly moved by the parties, as well
as their statements recorded on oath, this court sees no
possibility of rapprochement/reconciliation inter se parties and
as such, this Court sees no impediment in accepting the joint
request/ prayer having been made on behalf of the parties for
decree of divorce by way of mutual consent. Since, both the
parties have jointly prayed before this Court that the petition
under Section 13 of the Hindu Marriage Act, may be converted
into petition under Section 13-B of the Hindu Marriage Act, as
they have mutually agreed to dissolve the marriage, the divorce
petition filed under Section 13 of the Hindu Marriage Act, is
ordered to be converted into petition under Section 13-B of the
Hindu Marriage Act. Since, the parties are living separately since
2014 i.e. approximately for the last three years and they have
been litigating since 2015, statutory period of six months as
envisaged under Section 13-B of the Act , for granting decree by
mutual consent can be waived, especially when there is no
possibility of rapprochement between 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,
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(2011)14 SCC 614, wherein the Hon’ble Apex Court has held as
under:-
.
” 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. However, in the present case, the parties are in
appeal before this Court, as such, prayer of the parties to convert
the petition under Section 13 of the Hindu Marriage Act into
under Section 13-B of the Hindu Marriage Act, is required to be
considered accordingly. Otherwise also, it is quite evident from
the record that the parties are not living together since 2014 i.e.
for the last three years. Moreover, this Court after having
interacted with the parties, sees no possibility of reconciliation
inter se parties, as such, no fruitful purpose would be served in
case the matter is kept pending for another six months before
passing decree of divorce by mutual consent.
11. Hon’ble Apex Court in Priyanka Khanna v. Amit
Khanna, (2011) 15 SCC 612, has further 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.
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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.”
12. 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 waivedby 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 inM. 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?
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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
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
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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 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
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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
rchances of alternative rehabilitation.”
14. Consequently, in view of detailed discussion made
hereinabove, CMP No. 9050 of 2017 filed under Section 151 Code
of Civil Procedure as also CMP No. 9051 of 2017, filed under
Section 13-B of Hindu Marriage Act is allowed and divorce
petition filed by appellant Section 13 of the Act, is converted into
petition under Section 13-B of the Hindu Marriage Act, and in
view of the peculiar facts and circumstances, as enumerated
hereinabove, as well as law down by the Hon’ble Apex Court, the
marriage between the parties is ordered to be dissolved by way of
mutual consent. Registry is directed to draw a decree of
dissolution of marriage by mutual consent accordingly.
15. Needless to say, both the parties shall abide by terms
and conditions contained in the compromise and all the cases
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pending before the Court(s) below shall be withdrawn by the
parties, immediately, in terms of the compromise. Apart from
.
above, Mr. Nikhil Sharma, shall make payment qua the alimony
i.e. Rs. 5:00 lakh, as agreed by him within the time frame as
stipulated in the joint petition filed under Section 13-B of the
Hindu Marriage Act, failing which he shall render himself liable
for penal consequences as well as contempt of the Court.
16. The instant appeal is disposed of in the aforesaid
terms. Pending applications, if any, are also disposed of.
(Sandeep Sharma)
10th October, 2017 Judge
(shankar)
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