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K. Thiruvengadam And Another Petitioners v. Nil
Factual and Procedural Background
The Revision challenges an order of the learned Subordinate Judge, Thirupattur dated 17.9.2007 in I.A. No. 109 of 2007 in H.M.O.P. No. 101 of 2007. The husband and wife, jointly represented, filed a petition for divorce by mutual consent under Section 13-B(1) of the Hindu Marriage Act, 1955, and compliance with Section 13-B(1) was not in dispute; both parties were examined in the Subordinate Court. The petitioners also filed a joint application seeking waiver/condonation of the six-month period prescribed by Section 13-B(2). The Subordinate Judge, while taking evidence, effectively refused to waive the six-month period and posted the matter for hearing after six months (20.3.2008). The husband and wife filed this Civil Revision Petition jointly against that part of the order. The petitioners stated in affidavit that they had been living separately for two years with no chance of reunion and that the wife has an opportunity to pursue higher studies abroad which she would lose if forced to wait six months. The court was also informed of a pending criminal case between the parties before the Judicial Magistrate No. I, Thirupattur.
Legal Issues Presented
- Whether the six-month waiting period under Section 13-B(2) of the Hindu Marriage Act, 1955, is mandatory or directory, and consequently whether the Court may waive that period in a case of divorce by mutual consent.
- Whether the Subordinate Judge erred in refusing to waive the six-month period and in adjourning the matter for six months despite a joint application by the parties seeking waiver.
Arguments of the Parties
Petitioners' Arguments
- The petitioners stated they had been living separately for two years and there was no possibility of reunion.
- The wife, a joint petitioner, had an opportunity to pursue higher studies abroad and would lose that opportunity if required to wait six months.
- Counsel for the petitioners argued that the six-month period in Section 13-B(2) is directory and not mandatory, and therefore the statutory waiting period could be waived; reliance was placed on the Andhra Pradesh High Court decision in Grandhi Venkata Chitti Abbai and another, AIR 1999 A.P. 91.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Grandhi Venkata Chitti Abbai and another, AIR 1999 A.P 91 | That the statutory six-month period for divorce by mutual consent can be waived; parties need not be required to wait the statutory period in appropriate cases. | The court noted this authority as supporting the petitioners' contention that the six-month prescription can be waived and agreed with that view. |
| K. Om Prakash v. K. Nalini, AIR 1986 A.P 167 | Held that the six-month period is directory and not mandatory; consistent view of High Courts that the period may be waived. | Relying on the consistent view in this and other High Court decisions, the court accepted that the six-month period is not an absolute bar and can be dispensed with in appropriate cases. |
| Roopa Reddy v. Prabhakar Reddy, AIR 1994 Kar. 12 | Part of the consistent High Court view that the six-month period in Section 13-B(2) is not mandatory and can be waived in suitable cases. | Used as supporting authority for the proposition that the waiting period is directory and may be waived where there is no real prospect of reunion. |
| D.H Garasia v. N. Mansu, AIR 1988 Guj. 159 | Held that the six-month requirement is not mandatory and can be waived by the Court in proper circumstances. | Adopted as part of the consistent High Court jurisprudence endorsing waiver of the six-month period in appropriate cases. |
| Sreelatha… v. Deepthy Kumar…. AIR 1998 Ker. 97 at 98 | Held that in appropriate cases the period of six months can be waived by the Court. | Relied upon to show that multiple High Courts have treated the six-month provision as waivable; the court expressed respectful agreement with this view. |
Court's Reasoning and Analysis
The court began by extracting and considering Sections 13-B(1) and 13-B(2) of the Hindu Marriage Act, 1955. It noted that Section 13-B(1) prescribes the condition precedent (living separately for one year, inability to live together, mutual agreement for dissolution) and that these conditions were satisfied on the facts. Section 13-B(2) prescribes that the motion for decree be made not earlier than six months and not later than eighteen months after presentation of the petition.
The court addressed the petitioners' contention that the six-month period is directory rather than mandatory. It reviewed the consistent jurisprudence of several High Courts (as cited) which held that the statutory six-month period may be waived in appropriate cases. The court acknowledged the legislative purpose behind prescribing six months — to give parties an opportunity for reconciliation and to enable courts to make last-minute efforts to save the marriage — but held that where there is no real prospect of reunion, and particularly where the mutual-consent process has been followed, the court has discretion to waive the waiting period.
Applying these principles to the present facts (joint petition, compliance with Section 13-B(1), parties living separately for two years, and the wife's impending study opportunity abroad), the court concluded that the Subordinate Judge's view treating the six-month requirement as mandatory and refusing to waive it was not legally sustainable.
Holding and Implications
Holding: The Civil Revision Petition is allowed. The order of the learned Subordinate Judge dated 17.9.2007 insofar as it adjoined the matter to 20.3.2008 is set aside, and the Subordinate Judge is directed to take up the matter and pass appropriate orders in accordance with the observations in the judgment within two weeks from receipt of the copy of the order. The parties are directed to appear before the Subordinate Court, Thirupattur on the date of the pending criminal matter (29.10.2007) so that the Application may be disposed of as directed. No costs.
Implications: The direct effect is that the subordinate court's adjournment was vacated and the matter must be taken up and disposed of promptly as directed. The court expressed respectful agreement with the consistent High Court view that the six-month period in Section 13-B(2) can be waived in appropriate cases; the opinion did not purport to create a new departure from existing High Court authorities but applied that line of authority to the facts before it.
1. The Revision is directed against the order of the learned Subordinate Judge, Thirupattur made in I.A No. 109 of 2007 in H.M.O.P No. 101 of 2007 dated 17.9.2007, under which the learned Subordinate Judge, by considering the said Application filed jointly by both the husband and wife for divorce by mutual consent and also Petition praying for condoning the six month period, directed the matter to be called after six months, viz., on 20.3.2008
2. Both the husband and wife, who are the joint petitioners represented by the same counsel have filed the said Application for divorce by mutual consent and it is not in dispute that provisions of Section 13-B(1) of Hindu Marriage Act, 1955 (in short, “the Act”) has been complied with and based on that they were also examined in the Subordinate Court. However, considering the said Application filed by both the parties for condoning the six months' period, the learned Judge, has in effect refused the same and having taken evidence, posted the case after six months. It is, as against that part of the order of the learned Judge, present Revision is filed jointly by the husband and wife.
3. The points raised on behalf of the parties as it is seen in the affidavit filed in support of the above Petition is that for the past two years, the petitioners have been living separately and there was no chance of re-union. Moreover, the wife, who is a joint petitioner, is aspiring for higher studies in abroad and if she is made to wait for six months' time, she will be loosing the opportunity to proceed with her higher studies. In view of the same, the petitioners have jointly prayed for waiving of the statutory requirement of six months' time.
4. While dealing with the aspect of six months' time, it is relevant to extract the provisions of Section 13-B(1) and (2) of the Act, which reads as under:
“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 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 not 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 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.”
As per Section 13-B(1) of the Act, the condition precedent for the husband and wife to file an Application for divorce by mutual consent is that they have been living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. On the facts and circumstances of the case, it is not in dispute that this provision has been complied with. On the other hand, Section 13-B(2) of the Act says that, after six months of the presentation of the Petition and not later than eighteen months, if the Petition is not withdrawn then the Court has to hear the parties and make enquiry and pass appropriate orders.
5. The learned counsel appearing for the petitioners would submit that the period of six months mentioned under Section 13-B(2) cannot be treated as mandatory. His contention is that when once, under Section 13-B(1) it is made clear that the husband and wife are unable to live together for a period of one year, further period of six months after filing the Petition for mutual consent can only be treated as directory and not as mandatory. He would rely upon the judgment of the Andhra Pradesh High Court in Grandhi Venkata Chitti Abbai and another, AIR 1999 A.P 91. In that case, which is also similar on facts of the present case, the Andhra Pradesh High Court has held that the prescription of the statutory period of six months in respect of divorce by mutual consent can be waived and the parties can be given liberty to part their Company without waiting for the said statutory period.
6. The Andhra Pradesh High Court in K. Om Prakash v. K. Nalini, AIR 1986 A.P 167, has held that the prescription of six months' period is not mandatory and it is only directory in nature and that was the consistent view taken by various High Courts, including the Karnataka High Court in Roopa Reddy v. Prabhakar Reddy, AIR 1994 Kar. 12, and the Gujarat High Court in D.H Garasia v. N. Mansu, AIR 1988 Guj. 159. Likewise, the Kerala High Court in Sreelatha… v. Deepthy Kumar…., AIR 1998 Ker. 97 at 98, has held that in appropriate case the period of six months can be waived by the Court.
7. I am in respectful agreement with the consistent views taken by various High Courts. It is no doubt true that there is an obligation on the part of the Courts to make last minute efforts to save the marriage at any cost. It is only with that view in mind, the law makers have fixed the period of six months, so as to enable the parties to come together for mutual settlement instead of mutual divorce. But, in cases, where there is no possibility of re-union, especially after the divorce by mutual consent process has been adopted, which is by way of liberalised process, the facts of each and every case has to be considered and it is always open to the Court to decide about the waiver of the period of six months. Therefore, the view taken by the learned Subordinate Judge that the requirement of six months period as mandatory and cannot be waived by placing reliance on Section 13-B(2) of the Act, is not legally sustainable. As correctly pointed out by the learned counsel for the petitioners, if this Section viz., 13-B(2) of the Act is read as mandatory, then the very purpose of liberalised concept of divorce by mutual consent will be frustrated, especially when the parties have lived separately and there was no chance of re-union.
8. In view of the above said facts, the order of the learned Subordinate Judge dated 17.9.2007 made in I.A No. 109 of 2007 in H.M.O.P No. 101 of 2007, in so far as it relates to adjourning the matter to 20.3.2008, is set aside and the learned Subordinate Judge is directed to take up the matter and pass appropriate orders in accordance with the observation made above and such order shall be passed within a period of two weeks from the date of receipt of copy of this order.
9. The learned counsel appearing for the petitioners states that there is another criminal case pending between the same parties before the Judicial Magistrate No. I, Thirupattur and the same is posted on 29.10.2007 Therefore, the parties are directed to appear before the Subordinate Court, Tirupattur on the same day and the learned Subordinate Judge is directed to take up the Application and dispose of the same as directed above.
With the above direction, the Civil Revision Petition is allowed. No costs.
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