Dhanjit v. Beena Badra .

Arun B. Saharya, J.:— By this common judgment, I propose to dispose of C.R 1400/89 and F.A.O 264/89 filed by the husband Dhanjit praying for modification of an order dated 5-9-89 and for setting aside an order made by Ms Kanwal Inder, A.D J on 6-11-89 as both the impugned orders arise out of one petition filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (the Act) against the wife Beena for dissolution of their marriage by a decree of divorce on the ground of cruelty.

2. The parties were married according to Hindu rites on 12-3-82. A female child Shaista was born from wedlock on 4-7-83. Differences arose between the parties. They started living separately from each other from 5-6-84. They have not been able to live together since then. The petition under Section 13(1)(ia) of the Act was filed by the husband on 11-2-85.

3. During the proceedings, efforts were made, before framing issues as also thereafter, to bring about reconciliation between the parties but in vain. On 6-1-88, 21-3-89 and 5-5-89 statement of the husband was recorded as P.W 2. Thereafter, when the case was fixed for his remaining evidence, the parties filed two joint applications on 5 9 89, one under Order 6 Rule 17 and Section 151 of CPC praying that the petition for divorce filed by the husband may be treated as a petition under Section 15-B (1) of the Act, and the other under Section 13-B(2) for a decree of divorce by mutual consent.

4. It was stated in the application for amendment that the marriage between the parties had broken down completely and irretrievably. “Now there is absolutely no chance of any reconciliation between the parties or their living together”. It was further averred “that both the parties hereby withdraw all the allegations against each other and they mutually agree that their marriage may be dissolved by a decree of divorce”.

5. In the other application under Section 13B(2) of the Act, it was further state that the parties had mutually and amicably settled all the other disputes between them, that almost all the articles belonging to the wife had been returned to her and for the others she had been paid by a bank draft, and that nothing was due to the wife “on account of stri-dhana and all other claims”. With reference to the financial and earning capacity of the parties, the wife agreed and declared that she will not claim any permanent alimony and maintenance from the husband at any time. In view of the exclusive and sole custody of the minor child with the mother since 26-6 84 as also her financial capacity to independently maintain and educate the child, it was acknowledged that it would be clearly in the welfare of the minor child that she should continue to remain in exclusive and sole custody of her mother and the parties agreed “that it will be the sole liability and responsibility of the respondent to maintain the said minor child Shaista and also to look after the education and all other interests of the said minor child including her marriage, without any interference and/or any hinderance whatsoever by the petitioner and also that all expenses etc. in relation thereto and in connection therewith shall be borne by the respondent alone and that the petitioner shall in no way be liable for the same and also that no claim whatsoever shall ever be made by anyone whomsoever against the petitioner for the same”. In view of this comprehensive settlement between the parties, they prayed for a decree of divorce under Section 13-B of the Act and for a provision to be made in the decree with regard to permanent alimony and maintenance custody of the child as also disposal of property as envisaged by Sections 25, 26 and 27 of the Act.

6. By the first impugned order dated 5th September 1989, the trial Court “allowed” the application for amendment under Order 6, Rule 17, CPC. It is clear from this order that the Court again made an attempt to bring about reconciliation between the parties but the parties were not agreeable to live together and pressed the second application under Section 13-B of the Act. Therefore, the Court recorded their statements in which both the parties reiterated the position stated in the joint application and further requested that the earlier petition under Section 13(1)(ia) be treated as the first motion and the “period of six months may kindly be waived”. After recording the statements and hearing arguments, however, the Court directed the case to be put up on the next day for orders.

7. On the 6-11-89, the trial Court made the second impugned order rejecting the joint petition of the parties under Section 13-B of the Act as it felt that the order made just a day earlier on the application under Order 6, Rule 17, CPC “no where states from which date it has to take effect”, and “it is usual rule that once amendment has been allowed, it relates back to the date of the filing of the suit”. On this basis, the Court proceeded to consider “maintainability of the amended pleas” and came to the conclusion that “no case under Section 13 B(1) of the H.M Act was made out at the time of the original petition and in these circumstances question of allowing second motion petition under Section 13-B(2) of the H.M Act by waiving the six months period does not arise”.

8. Confronted with these two orders, the husband has preferred the revision petition as also the above-mentioned appeal to this Court, to modify the first order dated 5-9-89 so as to give effect to the amendment from the day when the order was made to set aside and reverse the second order dated 6-11-89 and to pass a decree for dissolution of the marriage under Section 13-B of the Act. The respondent wife has supported these prayers, [In para 9 Section 13-B is reproduced].

10. It is no doubt true that the ground envisaged in Section 13-B for divorce by mutual consent was not available to the parties on 10-2-85 when the husband filed the petition for divorce on the ground of cruelty under Section 13(1)(ia) of the Act because the parties had been living separately since only 5-6-84 whereas the said ground could be availed of when the parties have been living separately for a period of one year or more. But this ground was certainly available to the parties on 5-9-89 when they moved the above-mentioned two applications.

11. A bare perusal of application for amendment under Order 6, Rule 17, CPC as also of the petition under Section 13-B(2) of the Act shows that the agreement between the parties to separate as also the terms with regard to alimony, maintenance, custody of the child and disposal of property were negotiated and settled only during the pendency of the divorce petition. These were obviously subsequent events. It is now well-established by a decision of a D.B of Jawaharlal Mamtani v. Bhagchand Motumal Mamtani, 1981 (1) Delhi 1 that an amendment to take into consideration subsequent events would necessarily be effective from a future date and not the date of suit. In view of the peculiar circumstances of the present case, the subsequent events which occurred during the pendency of the proceedings, the nature thereof, as also the real intention of the parties expressed in the two applications, the trial Court ought to have allowed the amendment prospectively with effect from the date when the first impugned order was made. Therefore, the order dated 5-9-89 is hereby modified so as to allow amendment of divorce petition to convert it into one for divorce by mutual consent under Section 13-B(1) of the Act w.e.f the date of that order.

12. Even otherwise, the application under Section 13-B(1) of the Act moved on 5-9-89 fulfilled all the requirements of Section 13-B(1) of the Act, The trial Court, in my opinion, could have treated this application as a motion for the purposes of Sub-section (2) also, and, on the basis of the material already on record, the Court ought to have passed a decree for divorce by mutual consent under Section 13-B of the Act.

13. In Jagmohan Ahuja v. Smt. Sudesh, 1979 (5) H.L R. 303, the Punjab & Haryana High Court converted a petition under Section 13 into one for divorce by mutual consent under Section 13-B of the Act, on oral request of the parties, without a formal application, as it was felt that the parties were not likely to continue as husband and wife In Smt. Joginder Kaur v. Mohan Singh, 1979 (5) H.L.R 309, a D B of the Punjab and Haryana High Court allowed a miscellaneous application Sled in an appeal and allowed the original divorce petition to be amended to treat the same as a petition under Section 13-B of the Act and granted a decree for dissolution of the marriage by mutual consent on the basis of an agreement reached between the parties during the pendency of the appeal. In Prem Lata v. Yash Pal, 1985 (1) H L R. 148, in an appeal arising out of a decree for restitution of conjugal rights under Section 9 of the Act, the parties entered into a compromise and on basis of the statements made by them, the High Court treated a miscellaneour application as a petition under Section 13-B of the Act and passed a decree of divorce under Section 13-B. In Lalit Bhatia v. Kirana Bala, 1985 (2) H.L.R 371, the parties to the appeal made an application stating that they had executed an agreement between themselves and prayed for a decree under Section 13-B of the Act. Statements of the parties were recorded and on the basis of the agreement between them, the Court granted a decree.

14. In Santosh Kumari v. Virender Kumar, A.I.R 1985 Rajasthan 128, an appeal arose out of a decree granted by the trial Court under Section 15-B of the Act on the basis of an application jointly filed by the parties for that purpose. This decree was challenged, inter alia, on the ground that the joint application made in the trial Court could not be acted upon because the motion under Section 13-B(2) could have been made not earlier than six months after the filing of the joint application under Section 13(1) whereas joint application as well as motion under Section 13(2) had been made by a single application. Lodha, J. rejected this challenge and upheld the decree passed by the District Judge. It was held that when the parties requested the Court to treat the pending petition as one for grant of a decree of divorce by mutual consent. “They must be deemed to have asked for amendment of that application and when the Court acted upon it, it must be deemed to have allowed the amendment”. Since it was abundantly clear that the parties did not want to live together and were desirous of getting a decree of divorce, it was held; “In these circumstances, the insistence on the form of application would be improper and unnecessary because if the decree is refused on such a ground the agony between the parties wilt continue”. It was further observed, apart from the interpretation of Section 13-B(2) “that when it appears to the satisfaction of the Court that it is impossible for the parties to live together and a decree for divorce by mutual consent would be in the interest of both of them, it need not attach undue importance to the form of application, or the time within which it has been made”.

15. In Jarnail Kaur v. Bant Singh 1987 (1) H.L.R 75, an application originally filed by the wife was “converted” into an application for decree of divorce by mutual consent, statements of parties were recorded and on the same day a decree was passed dissolving the marriage of the parties without keeping the matter pending for a period of six months. It is stated in the judgment that it was being so done “as more than this prescribed period has already been spent by the parties for rethinking on the question of sustaining the marriage or dissolving it”. It was further observed “It would be futile to prolong their agony by allowing another six months' period to pass before a decree for divorce is granted”.

16. From these various decisions of different High Courts, it is clear that the requirement of a motion within the time specified under Section 13-(2) is merely a matter of formality and that a decree for divorce by mutual consent can be granted without waiting for the period of six months if a Court is satisfied in a case that the requirement of Section 13-B(1) is fulfilled. In other words, the time specified in Sub-section (2) can be waived if the Court is satisfied that the parties 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 as envisaged by Section 13-B(1) of the Act.

17. In K. Omprakash v. V.K Nalini, 1987 (2) H.L.R 230, in an appeal preferred by the husband against an order of the trial Court dismissing his application under Section 13 of the Act, the parties filed a compromise memo signed by both of them praying for a decree for divorce by mutual consent ignoring the allegations and the counter-allegations earlier made by the parties during the trial. A D B. of the A P. High Court felt that it would be in the best interest of the parties to order the dissolution of the marriage, as it was felt that the marriage between the parties had broken down irretrievably and there was no reasonable chance for their reunion, as they had been living apart for the last four and a half years. But the D.B was confronted with the question whether Section 13-B(2) of the Act permits the granting of such a decree. The D.B observed that Section 13-B has radically changed the old concept of Hindu marriage being a sacrament by treating it as an ordinary form of contract which the parties can enter into and put an end to like any other contract by mutual consent and that the liberalising trend of law in the matter of granting divorce by consent cannot be lost sight of by Courts in interpreting this section. It was observed that the time specified in Section 13-B(2) ‘is the last hope of the Legislature for saving the marriage. The intention of the Legislature is to provide a minimum period of six months for rethinking of the parties”. In this context, the question considered by the Bench was whether the Legislature intended that Section 13-B(2) be treated as a mandatory provision of law or merely as a directory provision. In view of the text, context, purpose and design of the said provision, it was held that Section 13(2) is a part of mere procedure and is, therefore, directory. It has been explained in this judgment that the six months' time fixed by Section 13-B(2) is not a rule relating to the jurisdiction of the Court to entertain a petition for divorce by consent, and that the question of jurisdiction is dealt with by Sub-section (1) which must be strictly complied with and Sub-section (2) is a part of mere procedure. Further, it has been reiterated that a procedural provision must be interpreted as a handmaid of justice in order to advance and further the interest of justice. Further, it has been explained in this judgment that Section 13-B(2) does not impose any fetter on the powers of the Court to grant instant decree of divorce.

18. In the present case, in view of the efforts made from time to time for conciliation between the parties and the result thereof, the averments made in the joint application under Section 13-B, the terms of settlement arrived at and acted upon by the parties and the joint statements recorded on 5-9-89, I am satisfied that the parties have been living separately for a period of more than one year, that they have not been able to live together, and that they have, therefore, mutually agreed that the marriage should be dissolved. I am also satisfied that there is no collusion between the parties. In these circumstances, I am of the opinion that the settlement between the parties is a prudent course of action and that the terms agreed upon are for the mutual benefit of the parties as also in the best interest and for the welfare of the minor child.