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Rajkumar Sureen vs Smt. Manju Tirki on 20 March, 2018

1 CR No.31/2018

HIGH COURT OF MADHYA PRADESH, PRINCIPAL
SEAT AT JABALPUR

Case No. Civil Revision No.31/2018
Parties Name Rajkumar Sureen
Vs.
Smt. Manju Tirki
Date of Judgment 20/03/18
Bench Constituted Single Bench.
Judgment delivered by Justice Sujoy Paul
Whether approved for No
reporting
Name of counsels for For applicant: Shri T.S. Ruprah,
parties Senior Advocate with Shri A.K.
Pandey, Advocate.

For Respondent: Shri S.K. Mishra,
Advocate.
Law laid down
Significant paragraph
numbers

ORDER

20/03/2018

This revision filed under Section 115 of the Code of
Civil Procedure takes exception to the order dated 22.11.2017
whereby the Court below rejected the application preferred by
the parties jointly under Section 28 of the Special Marriage
Act.

2. The admitted facts between the parties are that the
marriage between them was solemnized on 10.02.2014. Since
the matrimonial life of the parties was not smooth, the
applicant preferred an application under Section 27 of the
Special Marriage Act, 1954 (hereinafter referred to as “the Act
2 CR No.31/2018

of 1954″) on 12.04.2016.

3. During the course of hearing, learned counsel for the
parties jointly submit that after receiving notices in aforesaid
application preferred under Section 27 of the Act of 1954 by
the applicant, the respondent appeared through their counsel.
Various efforts were made by the counsel and the parties to
settle their dispute amicably. Since all such efforts went in
vain, the parties decided to prefer joint application seeking
divorce by mutual consent under Section 28 of the Act of
1954. The said application was jointly filed on 22.09.2017.

4. Learned counsel for the parties jointly contended that the
Court below has erred in disallowing the said application. It is
urged that Section 28(2) of the Act of 1954 is similar to
Section 13 (B) of the Hindu Marriage Act, 1955. In view of
judgment of this Court reported in AIR 2005 MP 106 (Dinesh
Kumar Shukla Vs. Smt. Neeta) and jugment of Supreme
Court in the case of Amardeep Singh Vs. Harveen Kaur, 2017
SCC Online SC 1073, the Court below should have allowed
the said application. It is jointly prayed that the impugned
order may be set aside and the Court below may be directed to
decide the application under Section 28 of the Act of 1954 and
grant decree of divorce on mutual consent.

5. No other point is pressed by learned counsel for the
parties.

6. As noticed, the parties are ad idem on the question of
divorce by mutual consent and have jointly urged that the
Court below has erred in disallowing the said application. In
the impugned order, the Court below has assigned following
3 CR No.31/2018

reasons for not entertaining the aforesaid application jointly
preferred by the parties:

(i) Parties can withdraw the present case and
thereafter file a joint petition under Section 28 of
the Act of 1954 for divorce by mutual consent.

(ii) After filing such application under Section 28 of
the Act of 1954, a waiver application can be filed
one week after the first motion, giving reasons for
the prayer for waiver of waiting period for the
second motion as mentioned in Para 20 and 21 of
the judgment of Supreme Court in the case of
Amardeep Singh (supra).

7. Section 28(2) is pari materia to Section 13(B)(2). It is
profitable to examine these provisions in juxtaposition.

Special Marriage Act, 1954 Hindu Marriage Act, 1955

28. Divorce by mutual consent.– 13B Divorce by mutual consent.
(1) Subject to the provisions of (1) Subject to the provisions of this
this Act and to the rules made Act a petition for dissolution of
thereunder, a petition for divorce marriage by a decree of divorce
may be presented to the district may be presented to the district
court by both the parties together court by both the parties to a
on the ground that they have been marriage together, whether such
living separately for a period of marriage was solemnised before or
one year or more, that they have after the commencement of the
not been able to live together and Marriage Laws (Amendment) Act,
that they have mutually agreed 1976 (68 of 1976)*, on the ground
that the marriage should be that they have been living
dissolved. separately for a period of one year
(2) On the motion of both the or more, that they have not been
parties made not earlier than six able to live together and that they
months after the date of the have mutually agreed that the
presentation of the petition marriage should be dissolved.
referred to in sub-section (1) and (2) On the motion of both the
not later than eighteen months] parties made not earlier than six
after the said date, if the petition months after the date of the
is not withdrawn in the presentation of the petition referred
meantime, the district court shall, to in sub-section (1) and not later
on being satisfied, after hearing than eighteen months after the said
the parties and after making such date, if the petition is not
inquiry as it thinks fit, that a withdrawn in the meantime, the
4 CR No.31/2018

marriage has been solemnized court shall, on being satisfied, after
under this Act, and that the hearing the parties and after
averments in the petition are true, making such inquiry as it thinks fit,
pass a decree declaring the that a marriage has been
marriage to be dissolved with solemnised and that the averments
effect from the date of the decree. in the petition are true, pass a
decree of divorce declaring the
marriage to be dissolved with effect
from the date of the decree.

8. A Division Bench of this Court in Dinesh Kumar Shukla
(supra) opined that divorce petition on the ground of cruelty
and desertion was pending for more than six months. Joint
application by the parties for divorce on mutual consent was
filed after making all possible efforts for reconciliation. The
Court need not wait for six months and can pass decree subject
to fulfillment of requirement of Section 13(B)(1). Pertinently,
in the case of Amardeep Singh (supra), the question arose for
consideration was whether the minimum period of six months
stipulated under Section 13-(B)(2) of the Hindu Marriage Act,
1955 for a motion for passing decree of divorce on the basis of
mutual consent is mandatory or can be relaxed in any
exceptional situations. After considering the legal journey on
this aspect, the Apex Court in no uncertain terms opined that
period mentioned in Section 13 (B)(2) is not mandatory but is
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.

9. The following principles are culled out for examining
whether a case is made out to waive the statutory period under
Section 13-(B)(2):

5 CR No.31/2018

“(i) the statutory period of six months specified in Section 13-

B(2), in addition to the statutory period of one year under
Section 13-B(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 32-A 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.

The waiver application can be filed one week after the first motion
giving reasons for the prayer for waiver. If the above conditions are
satisfied, the waiver of the waiting period for the second motion will
be in the discretion of the court concerned.”

10. The reason assigned by the Court below appears to be
based on the last portion of aforesaid quoted passage.
However, a careful reading of the judgment shows that it is
nowhere laid down that in order to prefer an application under
Section 28(2), the applicant was required to withdraw his
earlier application and thereafter file a joint petition under
Section 28 of the Act of 1954. No such statutory provision
could be brought to the notice of this Court which makes it
obligatory for the parties to withdraw the pending application
in order to file a fresh application under Section 28 of the Act
of 1954.

11. Putting it differently, it cannot be said that a joint
application under Section 28(2) of the Act of 1954 is not
maintainable if the same is filed in a pending proceeding. The
intention of Legislature in bringing sub-section (2) of Section
28 in the statute book is to facilitate the parties to cut short the
litigation and get divorce with mutual consent when other
6 CR No.31/2018

essential conditions are satisfied. This will provide them
chance to settle in life. Thus question of filing such application
in the pending proceeding is a procedural aspect. There is no
substantive statutory prohibition in filing application under
Section 28(2) in the same proceeding.

12. This is settled in law that all the rules of procedure are
the handmaid of justice. The Apex Court in AIR 1955 SC
425,Sangram Singh v. Election Tribunal, Kotah opined that A
code of procedure must be regarded as such. It is “procedure”,
something designed to facilitate justice and further its ends: not
a penal enactment for punishment and penalties; not a thing
designed to trip people up. Too technical a construction of
sections that leaves no room for reasonable elasticity of
interpretation should therefore be guarded against. The Apex
Court in (1975) 1 SCC 774, Sushil Kumar Sen v. State of
Bihar opined that the mortality of justice at the hands of law
troubles a judge’s conscience and points an angry interrogation
at the law reformer. The processual law so dominates in certain
systems as to overpower substantive rights and substantial
justice. The humanist rule that procedure should be the
handmaid, not the mistress, of legal justice compels
consideration of vesting a residuary power in judges to act ex
debito justitiae where the tragic sequel otherwise would be
wholly inequitable. Justice is the goal of jurisprudence-
processual, as much as substantive. In (1976) 1 SCC 719, State
of Punjab v. Shamlal Murari, the Apex Court held that
processual law is not to be a tyrant but a servant, not an
obstruction but an aid to justice. Procedural prescriptions are
7 CR No.31/2018

the handmaid and not the mistress, a lubricant, not a resistant in
the administration of justice. In (1984) 3 SCC 46, Ghanshyam
Dass v. Dominion of India, the Apex Court reiterated the need
for interpreting a part of the adjective law dealing with
procedure alone in such a manner as to subserve and advance
the cause of justice rather than to defeat it as all the laws of
procedure are based on this principle. In (2005) 4 SCC 480,
Kailash v. Nanhku, the Apex Court held that the provisions of
Civil Procedure Code or any other procedural enactment ought
not to be construed in a manner which would leave the Court
helpless to meet extraordinary situations in the ends of justice.

13. The procedural aspect and technical approach cannot be
permitted to strangulate the basic purpose of an enactment and
such technical approach must be eschewed. The Bombay High
Court in Rakesh Harsukhbhai Parekh vs. State of
Maharashtra, AIR 2010 (Bom) 34 held that where original
petition for divorce had been filed under Section 13 and had
remained pending for more than six months, divorce sought by
the parties by consent could be granted without waiting for
statutory period of six months. In AIR 2003 PH 255
(Chander Kanta vs. Mohinder Pratap Dogra), the High Court
permitted the parties to file a joint application and to convert a
petition filed under Section 13 of Hindu Marriage Act, 1955 as
a petition for divorce by mutual consent. Similar view is taken
by Division Bench of Bombay High Court in 2016 SCC
Online Bom 10705 (Nikhlesh Anil Rodrigues vs. Rachelle
Anne Ornillo Montero). On the basis of these judgments, the
view taken by court below that first petition must be
8 CR No.31/2018

withdrawn for filing application for divorce with mutual
consent is erroneous.

14. In the light of aforesaid analysis, the impugned order
cannot be countenanced. The Court below is, therefore,
obliged to decide the pending application under Section 28(2)
of the Act of 1954 in accordance with law. It is noteworthy
that if there exists a requirement of initiating first motion with
reasons, followed by another motion, the Court below may
permit the parties to undertake the said exercise. Thereafter,
the Court below shall decide the application filed under sub-
section (2) of Section 28 in accordance with law expeditiously.

15. The impugned order is set aside. The Court below shall
decide the said application in accordance with law by taking
into account the observations made hereinabove.

16. The application is allowed to the extent indicated above.

(Sujoy Paul)
Judge
Biswal

Digitally signed by SHIBA NARAYAN BISWAL
Date: 2018.03.20 13:41:22 +05’30’
9 CR No.31/2018

HIGH COURT OF MADHYA PRADESH JABALPUR
Civil Revision No.31/2018

Rajkumar Sureen
Vs.

Smt. Manju Tirki

For applicant : Shri T.S. Ruprah, senior counsel with
Shri A.K. Pandey, Advocate.

For Respondent : Shri S.K. Mishra, Advocate.

Judgment post for : 20/03/2018

(Sujoy Paul)
Judge
/03/2018

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