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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • A.K.Nigam
  • Nandini Sahni
Judges
  • Mr. CM. Nayar, J.
Acts
  • SECTION 13 B HINDU MARRIAGE ACT
  • Marriage Laws (Amendment) Act, 1976,
  • sub-Section 1 of Section 13-B
  • Sub-Section (2) of Section 13-B
  • provisions of Section 13-B
  • Section 498-A/406/34 IPC
  • Section 13-B Mutual
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • A.K.Nigam
  • Nandini Sahni
Judges
  • Mr. CM. Nayar, J.
Acts
  • SECTION 13 B HINDU MARRIAGE ACT
  • Marriage Laws (Amendment) Act, 1976,
  • sub-Section 1 of Section 13-B
  • Sub-Section (2) of Section 13-B
  • provisions of Section 13-B
  • Section 498-A/406/34 IPC
  • Section 13-B Mutual
See more information ...
Smart Summary

Structured Summary of the Opinion by C.M. Nayar, J.

Factual and Procedural Background

The petitioner and respondent were married on December 14, 1987 in Delhi and lived together until August 17, 1990, after which they began to live separately. No children were born of the marriage. The petitioner filed a criminal complaint (FIR No. 263 of 1990) inter alia under Sections 498-A, 406 and 34 IPC. Family members and others helped the parties settle their differences and an agreement dated October 9, 1991 was entered into. Subsequently both parties filed a joint petition for dissolution of marriage under Section 13-B of the Hindu Marriage Act, 1955 (divorce by mutual consent). Their statements were recorded before the Additional District Judge (ADJ), who on October 11, 1991 allowed the petition and took it on record but ordered that the second motion (the motion under Sub‑Section (2) of Section 13‑B) must be made within the statutory period (i.e., not earlier than six months after presentation of petition). The present petition challenges the ADJ's order only to the extent that he declined to waive the statutory six‑month waiting period and did not pass any order waiving it; the petitioners sought dissolution without waiting for the statutory period.

Legal Issues Presented

  1. Whether the requirement in Sub‑Section (2) of Section 13‑B (the six‑month waiting period before making the second motion) is a mere formality and can be waived by the Court.
  2. Whether the Court has jurisdiction to pass a decree of divorce by mutual consent prior to the expiry of the statutory six‑month period and whether mutual consent must subsist when the second motion is made.

Arguments of the Parties

Petitioner's Arguments

  • Counsel for the petitioner submitted that the requirement of making a second motion not earlier than six months after presentation of the petition (Sub‑Section (2) of Section 13‑B) is only procedural or directory and can be waived.
  • If the conditions of Sub‑Section (1)—that the parties have lived separately for one year or more, cannot live together and have mutually agreed to dissolve the marriage—are satisfied, a decree of divorce can be granted without waiting the six‑month period.
  • Reliance was placed on the Delhi High Court decision in Dhanjit… v. Beena Badra (1990 (3) Delhi Lawyer 43) and on Section 23 of the Act (that consent should not be obtained by force, fraud or undue influence) to support the contention that the Court need only be satisfied as to bona fides and that the waiting period is not mandatory.
  • Counsel also referred to other authorities (including Orissa High Court and an order in Transfer Petition No. 282 of 1990) to support the proposition that a decree may be passed earlier than six months.

Respondent's Arguments

  • Counsel for the respondent adopted the same line of argument as the petitioner — that Sub‑Section (2)'s time requirement is formal/directory and may be dispensed with where the Court is satisfied that Sub‑Section (1) is fulfilled and that consent is bona fide.
  • The respondent's counsel also relied on the same authorities cited by the petitioner (including Dhanjit and certain High Court decisions) and on the provision of Section 23 for the proposition that the Court's role is limited to satisfaction as to absence of force, fraud or undue influence.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dhanjit… v. Beena Badra…, 1990 (3) Delhi Lawyer 43 Held (as cited by counsel) that the period prescribed in Sub‑Section (2) can be waived and is directory; the filing of the initial petition was treated as crucial for mutual consent. The court noted this decision was relied upon by counsel but declined to follow it, finding the Supreme Court's later decision in Smt Sureshta Devi v. Om Prakash to be decisive.
Mihir Narayan Mohanty v. Sadyalaxmi Patnaik, AIR 1991 NOC 92 (Orissa) Held (as reported) that there is no bar to passing an order earlier than the specified six‑month period. The court recorded this authority as part of the materials relied upon by counsel but did not adopt its conclusion in view of the Supreme Court authority discussed later.
Smt. Archana Bansal v. Rajinder Kumar Bansal (Transfer Petition No. 282 of 1990 dated March 12, 1991) Referenced (order cited in the opinion). The text notes that this order was subsequently followed by the City Civil Court at Calcutta. The opinion records the order as part of the landscape of conflicting authorities but treats the Supreme Court's later ruling in Smt Sureshta Devi as settling the controversy contrary to the approach attributed to this order.
Santhana Krishnan v. Poonagothai Ammal, II (1989) DMC 443 (Madras High Court) Held (as cited) that the period in Sub‑Section (2) is directory and may be waived. The court noted this decision among those taking the directory view but disapproved that approach in light of the Supreme Court's interpretation in Smt Sureshta Devi.
Smt Sureshta Devi v. Om Prakash, (1991) 2 SCC 25 (Supreme Court) Interpreted Section 13‑B as imposing a mandatory waiting period; held that mutual consent must subsist when the parties move under Sub‑Section (2) and the Court must be satisfied as to bona fides — thus the Court cannot grant a decree if mutual consent no longer exists at the time of the second motion. The court accepted and followed the Supreme Court's interpretation as decisive. The opinion quotes paras 13 and 14 at length and holds that the statutory six‑month period must be complied with and that the Court lacks jurisdiction to make a decree before its expiry.

Court's Reasoning and Analysis

The court framed the short question in the petition as whether Sub‑Section (2) of Section 13‑B is a mere formality and can be waived. It reproduced the provisions of Section 13‑B (both Sub‑Section (1) and Sub‑Section (2)) to show the statutory scheme: (1) filing of a joint petition when parties have lived separately for one year or more, cannot live together and mutually agree to dissolve the marriage; and (2) a motion by both parties not earlier than six months and not later than eighteen months, on which the Court must be satisfied after hearing the parties and such inquiry as it thinks fit, before passing a decree.

The court recorded that counsel for both parties urged that the time requirement in Sub‑Section (2) is merely procedural and can be waived if the conditions in Sub‑Section (1) are satisfied; counsel relied on certain High Court decisions and on Section 23 (that consent must not be obtained by force, fraud or undue influence).

The opinion then examined the authorities. It acknowledged conflicting High Court decisions that treated the period as directory (e.g., Delhi and Madras decisions) and other decisions (Orissa High Court and an order in a Transfer Petition) that were cited in support of early grant of decree. However, the court found the matter "set at rest" by the Supreme Court's decision in Smt Sureshta Devi v. Om Prakash (1991) 2 SCC 25. The opinion quoted paras 13 and 14 of that judgment, which explained that:

  • The initial petition does not authorize the Court to make a decree; there is a deliberate interregnum of six to eighteen months to allow reflection and possible change of mind.
  • Sub‑Section (2) requires that mutual consent should exist not only at filing but also when the parties move for the decree; the Court must be satisfied about the bona fides and the continuing consent of both parties at the time of the hearing under Sub‑Section (2).
  • If mutual consent does not exist at the time of the second motion, the Court has no jurisdiction to make a decree by mutual consent.

Applying this reasoning, the court concluded that Sub‑Section (2)'s waiting period is mandatory, the statutory six‑month period must elapse, and the Court has no jurisdiction to pass a decree of divorce prior to the expiry of that period. The court therefore declined to waive the period in the present case.

Holding and Implications

Holding: The petition challenging the ADJ's refusal to waive the statutory six‑month waiting period under Sub‑Section (2) of Section 13‑B is dismissed.

Implications and direct effects:

  • The Additional District Judge's direction that the second motion must be made within the statutory period (i.e., not earlier than six months) remains valid and is upheld.
  • The Court held that a decree of divorce by mutual consent cannot be granted before the statutory waiting period has elapsed; mutual consent must continue until the second motion and hearing under Sub‑Section (2).
  • No order as to costs was made in the opinion ("There shall be no order as to costs").
  • The opinion follows the Supreme Court's interpretation in Smt Sureshta Devi v. Om Prakash and does not purport to lay down a new contrary precedent; it therefore adheres to the authoritative interpretation that the waiting period is mandatory.

Note: The body of the opinion explicitly states in paragraph 10 that "The petition, as a consequence, is dismissed. There shall be no order as to costs." The printed opinion also contains a blockquoted line "Petition allowed." The operative reasoning and paragraph 10 record dismissal; the blockquoted phrase appears in the text but is inconsistent with the explicit dispositional paragraph.

Petition allowed.
Show full summary ...

    Anita Sarwal v. Dr. Deepak Sarwal .

    C.M Nayar, J.— The present petition is directed against the order of Additional District Judge dated October 11, 1991, only to the extent that he declined to waive the second Motion under Section 13-B of the Hindu Marriage Act, 1988, (hereinafter referred to as the Act) and has not passed any order with regard to the same. The decree for divorce was prayed under Section 13-B of the Act, without waiting for the statutory period of six months.

    2. The brief facts of the case are that the petitioner and respondent were married on December, 14, 1987 at Delhi according to Hindu rites. The parties resided and lived together as husband and wife till 17th August, 1990. No child has been born out of the wedlock. The parties separated from each other and started living separately since August 17, 1990, in view of the irreconcilable differences between them. The petitioner filed a criminal complaint registered as FIR No. 263 of 1990, inter alia under Section 498-A/406/34 IPC with police station Chitranjan Park, Nanakpura, New Delhi. The relations, friends, as well as, well-wishers of both the parties voluntarily and mutually were able to settle their differences in respect of their rights and claims against each other and an agreement dated October 9, 1991, as a consequence was entered into between the parties. The petitioner, as well as, the respondent filed a petition thereafter for dissolution of their marriage by a decree of divorce under Section 13-B of the Act, which related to divorce by mutual consent. The statements of the parties were recorded before the Additional District Judge to the effect that they cannot live together and as a consequence have settled their claims in terms of the agreement and have moved the joint petition of their own free will, without any force, fraud and undue influence.

    3. The Additional District Judge passed the order on the same day i.e on October 11, 1991, allowing the petition and taking the same on record. He further ordered that the second Motion may be made within the statutory period of limitation. The petitioner, as well as, the respondent are aggrieved by this part of the order and have prayed that the marriage may be dissolved after waiving of the statutory period of six months, as provided in Section 13-B of the Act.

    4. The short question, which arises in this petition is, whether, the requirement of law, as contained in sub-Section 2 of Section 13-B is a matter of mere formality and whether, the said period can be waived. The relevant provisions of Section 13-B may be reproduced 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 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 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.”

    5. The learned Counsel for the petitioner, as well as, for the respondent have argued that the requirement of a Motion within the time specified under Sub-Section (2) of Section 13-B is merely a matter of formality and that a decree of divorce can be granted, without waiting for the period of six months, specified under sub-Section (2), if a Court is satisfied in a case that the requirement of sub-Section 1 of Section 13-B is fulfilled. Therefore, it is contended that the said period 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. The Court, however, is at liberty, in terms of sub-clause (B) of the said Section, on being satisfied after hearing the parties and after making such enquiry, as it thinks fit and that the marriage has been solemnized and that the averments in the petition are true, to pass a decree of divorce declaring the marriage, to be dissolved with effect from the date of the decree.

    6. The Counsel have relied on judgment of this Court in Dhanjit… v. Beena Badra…., 1990 (3) Delhi Lawyer 43. The Counsel have also referred to the provision of Section 23 of the Act for the proposition that, where the divorce is sought on the ground of mutual consent, the Court only has to be satisfied that such consent has not been obtained by force, fraud or undue influence. The said provision is reproduced as follows:

    “23. Decree in proceedings.—(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that—

    …………………………

    (BB) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or under influence:

    7. Reference is also made to the unreported judgment of the Orissa High Court in Mihir Narayan Mohanty v. Sadyalaxml Patnaik, AIR 1991 NOC 92 (Orissa), where, it has been held that there is no bar for passing an order even earlier than specified time of six months, and order of the Supreme Court in Transfer Petition No. 282 of 1990 dated March 12, 1991 Smt. Archana Bansal v. Rajinder Kumar Bansal, which was subsequently followed by the City Civil Court at Calcutta. There is no doubt that the Delhi High Court in Dhanjit Vadra's case (supra), as well as, the Madras High Court in Santhana Krishnan v. Poonagothai Ammal, II (1989) DMC 443, have taken the view that the period, as specified in sub-Section (2), can be waived and the same is directory and a mere part of procedure. The controversy seems to have been set at rest by a judgment of the Hon'ble Supreme Court in Smt Sureshta Devi v. Om Prakash., (1991) 2 SCC 25 where, the Court has interpreted the provisions of Section 13-B and explained the essential requirements of the said provision. I may refer to paragraph 13 of the said judgment, which reads as follows:

    “From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnums was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not by a party to the joint motion under sub-Section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-Section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties …if the petition is not withdrawn in the meantime, the Court shall…pass a decree of divorce”… What is significant in this provision is that there should also be mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”

    8. The Supreme Court has obviously interpreted the provisions, as mandatory and the period, as prescribed in sub-Section (2), has to be adhered to. When the Court is saying that there should also be mutual consent, when the parties move the Court with request to pass a decree for divorce and the Court should also be satisfied about the bona fides and the consent of the parties the statutory period of six months has to elapse. The Court, therefore, gets no jurisdiction to make a decree for divorce, prior to the expiry of the period, as specified in the Section and the consent must continue when the second Motion is made. Paragraph 14 of the said judgment may also be reproduced in this regard:

    “Sub-Section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that “I have withdrawn my consent”, or “I am not a willing party to the divorce”, the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. “The consent must continue to decree nisi and must be valid subsisting consent when the case is heard.”

    9. I am in respectful agreement with the judgment of the Supreme Court in Smt. Sureshta Devi's case (supra) and also hold that the filing of the petition, with mutual consent, does not authorize the Court to make a decree for divorce on the initial petition. There is a period of waiting from 6 to 18 months and the said period cannot be dispensed with.

    10. The petition, as a consequence, is dismissed. There shall be no order as to costs.

    Petition allowed.
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    Comments

    Anita Sarwal v. Dr. Deepak Sarwal .
    (Feb 5, 1992)