JUDGMENT

1. The unsuccessful husband before both the Courts below has filed this appeal. The facts which are necessary for the disposal of the appeal can be briefly stated as follows: The appellant filed a petition under S. 13 of the Hindu Marriage Act 1955, for dissolution of the marriage on the ground of cruelty and desertion. The case of the appellant is that he married the respondent on 29-6-1972 at Cuddalore and thereafter they were living as husband and wife at Ooty where the appellant was employed as a lecturer in Government Arts College. In May 1973, he was transferred to Government Arts College Cuddalore. They also lived together from January, 1974 to April, 1974 at Devanam-pattinam. Thereafter, the appellant shifted his place of residence to Naduthittu and in the beginning of February, 1975, the respondent left the appellant without his knowledge and consent and had gone to her parent's house at Narthangudi in Chidambaram taluk. Even when the respondent was living with him she used to often go to her parent's house without informing the appellant. In May, 1973, the respondent was pregnant and was taken to Naduthittu by the appellant where Seemantham was celebrated. She gave birth to a female child on 7-8-1973. Thereafter, she joined the appellant in January, 1974 and was living with him till April, 1974. On 5-2-1975 the parents of the respondent came to Naduthittu and took the respondent away to their place. She did not return thereafter. The respondent was behaving in a peculiar way. She was neither cordial towards the appellant nor was obedient to him. The appellant's domestic life was made unhappy on account of the attitude of the respondent. She used to quarrel with the appellant frequently without any cause. The appellant was having disturbed mind on account of the attitude of the respondent. She was also threatening the appellant with cruelty and made his life miserable. The appellant had been affected by the various acts of cruelty on the part of the respondent. The respondent deserted the petitioner from May, 1975. The attempts made by the appellant to persuade the respondent to return to him and the request made to the parents of the respondent were all in vain. Hence he filed a petition on the ground of cruelty and desertion.

2. The petition was resisted by the respondent and she would contend that they were quite happy till she gave birth to a child on 7-8-1973. After the appellant was transferred to Cuddalore, one Ramasubba Kachirayar, the junior paternal uncle of the appellant, wanted to give his daughter in marriage to the respondent's elder brother. Her father was not willing and Ramasubba Kachirayar got offended. The appellant took a hostile attitude from that time and began to ill-treat the respondent. Ramasubba Kachiraryar's son, one Kalyanasundaram was studying in P.U.C in the Government Arts College, Cuddalore. One Kuppuswami, a relation was also studying in the college. Both of them were staying with the appellant. The appellant insisted that the respondent should cook food for all of them before 8 O‘clock in the morning and refused to engage a servant. It was impossible for the respondent to attend to everything, as she had to take care of her daughter. The appellant used to beat and illtreat the respondent whenever there was some delay. He was always finding fault with the respondent. On the instigation of Ramasubba Kanchirayar the appellant took the respondent to Naduthittu. At the instigation of the p rents he began to illtreat the respondent. She was refused food on several days. The petitioner's mother beat her on several occasions without any reason. They were repeatedly telling the respondent that the appellant was going to remarry. When the respondent's relation asked the appellant about the illtreatment, the appellant got aggrieved by this and beat the respondent in their presence. She was putting up with all these till the end of September, 1976. It was only the appellant who made the life miserable. She never deserted the appellant nor treated him cruelly.

3. The trial court on the evidence adduced by either side came to the conclusion that the petitioner has not made out the ground of cruelty or desertion and consequently dismissed the petition. Aggrieved by the same the appellant preferred an appeal and he was unsuccessful. Hence this appeal. The appeal was admitted on the following substantial questions of law—

1. Whether the continuous absence of a wife for more than two years from the company of husband would amount to mental cruelty to husband and would be a ground for divorce under S. 13 of Act 58 of 1976?

2. Whether the admission of R.W.3 Dr. Sambandam, that the respondent has not got the maturity of mind, coupled with the various actions of the respondent would not establish that the respondent is suffering continuously or intermittently from mental disorder?

3. Whether the judgment of the lower appellate court is not vitiated on the failure of appreciation of oral and documentary evidence?

4. At the time when the appeal was taken up for hearing, learned counsel for both sides filed a joint memo to the effect that a compromise decree dated 8-10-1984 was passed between the parties in O.S 48 of 1984 on the file of the Subordinte Judge, Cuddalore. As per the terms of the compromise decree, the appellant herein has paid the respondent herein Rs. 25,000 in full quits of all the appellant's claims, and even at that time the parties had been living separate and their wedlock had become a deadlock and the chances of reunion had completely faded away and subsequent to the compromise decree the appellant and the respondent have snapped all ties and are living separately. Even as per the compromise decree in O.S 48 of 1984 the parties had agreed to the dissolution of the marriage. It is further stated that there is no collusion between the parties, nor was the agreement the result of any passing phase of mental agony or temporary feeling of unhappiness. They have also requested that the compromise decree in O.S 48 of 1984, a certified copy of which is filed, can be treated as an application under S. 13-B of the Act and grant a decree for dissolution.

5. In this connection, the learned counsel for the appellant produced before me a decision of the Division Bench of the Andhra Pradesh High Court in Omprakash v. Nalini A.I.R 1986 A.P 167. wherein their Lordships, in similar circumstances where the parties had filed a compromise memo praying for passing a decree declaring the marriage between them to be dissolved by mutual consent ignoring allegations and counter allegations made by the parties, held thus—

“S. 13-B(2) should be read as directory only. S. 13-BC2) no doubt, cautions the courts of its duty to fight the last ditch battle to save the marriage, but when the court is fully satisfied on the basis of the proved facts, that in the interests of justice of the society and the individuals the marriage tie should be put as under immediately. S. 13-B(2) does not impose any fetter on the powers of the court to grant instant decree of divorce. At any rate the time-table fixed by S. 13-B(2) does not apply to an appellate court. Wherein appeal in a petition for divorce, it was found that the parties had been living apart for long and their wedlock had virtually become a deadlock, and the chances of reunion had completely faded away, it was just and proper to grant a decree of divorce straightway.”

6. In Indrawal v. Radhey Raman A.I.R 1981 All. 151. also in similar circumstances it was held thus—

“The policy of the law having undergone a change after the Marriage Laws (Amendment) Act, 197b it is possible now to dissolve a marriage by agreement between the parties although none of the grounds on which a marriage may be dissolved by a court be found to exist. It cannot, therefore, be said that the compromise is in any manner unlawful. Being thus satisfied that the parties have adjusted the dispute between them by a lawful compromise. I order that the compromise be recorded and the appeal is dismissed. Consequently the decree for divorce dissolving the marriage between the parties shall stand confirmed.”

7. S. 13-B of the Hindu Marriage Act, 1955 reads as follows—

“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 marriage Laws (Amendment)Act 1976, on the ground that they have not been living separately for a period of one year or more, ‘hat 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 not earlier than six months after the date of the presentation of the petition referred to in sub-S.(1), and not later than eighteen 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, 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.”

The above S. 13-B radically altered the legal basis of a Hindu marriage by treating it as an ordinary form of contract which competent parties can enter into and put an end, to like any other contract by mutual consent. Just as the parties can obtain a consent decree from the courts under O. 23, R 3, C.P.C so they can now under S 13-B of the Hindu Marriage Act obtain a consent divorce. But, it is provided under S. 13-B that both the parties can apply for a dissolution of marriage by a decree of divorce by mutual consent, only if they have been living separately for one year or more and that they have not been able to live together. Further, under clause (2) of S. 13-B, it is required that the court should not pass a decree for divorce before six months of time lapses and after 18 months of time passes from the date of filing of such a petition for divorce. The intention of the Legislature is to provide a minimum period of six months for re-thinking of the parties. The question is whether the Legislature intended that S. 13-B(2) of the Act should be treated as a mandatory provision of law or the Legislature intended that section to be treated merely as a directory provision of law. It is the well settled proposition of law that a statutory provision of law though mandatory in form, can yet be treated as directory in substance. The question then arises whether there is anything in the text of S. 13-B(2) of its context or purpose or design that calls for S:13-B(2) being interpreted as directory. In this context, we should first call attention to the design of the law expressed in its liberalising tendency of providing relief to parties on the basis of their mutual consent form their broken marriages. We must remember that this relief is granted by bringing about a profound alteration in the concept of a Hindu marriage from that of a sacrament to a contract. By that alteration, law has definitely set its face against forcible perpetuation of the status of matrimony between unwilling partners. On a reading of S 13-B it is clear that the six months time fixed by S13-B(2) is not a rule relating to jurisdiction of the courts to entertain a petition filed for divorce by consent while S. 13-B(2) deals with the jurisdiction and that must be strictly complied with. S. 13-B(2) is a part of mere procedure. It is well-established that a procedural provision must be interpreted as a hand-maid of justice in order to advance and further the interests of justice and not as a technical rule. It is also pertinent to note that if S. 13-B(2) is read as a mandatory provision and as applicable to the exercise of matrimonial jurisdiction by the appellate Court also, S. 13-B(2) becomes totally unworkable. According to the literal reading of S. 13-B(2) the Courts cannot pass a consent decree of divorce beyond 38 months period from the date of its filing. In the event that such an application is filed by the parties and the courts for some reason of human error or failure did not and could not dispose it of within the said period of 18 month's, the literal reading of S. 13-B(2) prevents the courts from granting that relief thereafter. Similarly if a petition for divorce by mutual consent is filed before the lower court and was dismissed by the lower court for some reason, the appellate Court would be powerless to grant that relief on the basis of the application filed in the lower Court because 18 months must have elapsed by the time the matter reached the appellate forum although the parties are still fighting relentlessly in the appellate court. These considerations, lead us to hold that it could not have been the intention of S. 13-B(2) that the appellate Court should always drive the fighting parties to go through the purposeless forms of meaningless ceremony of petitioning again for consent divorce waiting and watching the completion of necessary number of revolutions of this mother Earth around the unraoving Sun. For all these reasons, it is clear that when the appellate court is fully satisfied on the proved facts that the individuals marriage tie should be put asunder immediately as the parties have been living separately for more than the time prescribed under S. 13-B and that they have been fighting for a sufiiciently long period, S. 13-B does not impose any fetter on the powers of court to grant instant decree of divorce. Further, the timetable fixed by S. 13-B(2) does not apply to an appellate court as has been held by a Division Bench of the Andhra Pradesh High Court in the above quoted case, Omprakash v. Nalini. I am in respectful agreement with the reasonings and the view expressed by the learned Judges in the above quoted decision.

8. Applying the ratio laid down in the above decision, it is seen that admittedly the parties have been living separately from 1975 and they have been fighting in various courts and it is seen that though the appellant was unsuccessful before both the courts, be had failed to prove desertion and cruelty. In the maintenance suit filed by the respondent-wife, in O.S 48 of 1984, they entered into a compromise wherein the respondent received a sum of Rs. 25,000 and had also withdrawn the maintenance proceedings and further she had agreed that she should report to this court about her willingness to grant a decree for divorce in favour of the appellant. In view of the various proceedings and the compromise entered into between the parties it cannot be said that the present joint memo filed by both parlies is the result of any collusion between them, nor was the result of any passing phase of mental agony or temporary feeling of un-happiness. It may also be noted that the parties are also agreeable to get a decree of divorce in this appeal. It is also to be noted that the proceedings are pending between the parties from 1977 for about 11 years. It is also observed that they have been living apart for a long period of more than 13 years and their wedlock has become virtually a deadlock and their chances of re-union is ruled out in view of the compromise already entered into by them in the maintenance proceedings. There is no necessity for driving them to file another petition for divorce on the ground Of mutual consent under S. 13-B of the Act. Hence even though the appellant has not established any of the grounds, in view of the compromise memo and the circumstances of the case, he can be granted a decree for divorce declaring that the marriage between appellant and the respondent is dissolved with immediate effect under S. 13 B (2) of the Act. Accordingly, the civil miscellaneous second appeal is allowed and the judgments passed by the courts below are set aside and instead, a decree of divorce is granted on mutual consent and not on the merits of the allegations made by the parties. There will be no order as to costs

VCS/KA.