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Attorney(S)
  • PRESENT: Mr. M.B Harikant, Adv. for the Appellant.
  • Mr. S.N Sharma, Adv. for the Respondent.
Judges
  • Kailash Gambhir, J.
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citation codes
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Attorney(S)
  • PRESENT: Mr. M.B Harikant, Adv. for the Appellant.
  • Mr. S.N Sharma, Adv. for the Respondent.
Judges
  • Kailash Gambhir, J.
Acts
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Smart Summary

Court Opinion Summary — Kailash Gambhir, J.

Factual and Procedural Background

The appellant husband and respondent wife jointly filed a petition under Section 13B(1) of the Hindu Marriage Act on 4 August 2007 (registered as HMA No. 656/2007). The trial court recorded statements and allowed the first motion on the same day. The parties jointly moved an application under Section 151 CPC seeking waiver of the statutory six-month period so that they could proceed to the second motion under Section 13B(2). The trial court allowed the waiver, recorded statements on the second motion and, by order dated 8 August 2007, passed a decree of divorce by mutual consent under Section 13B(2) (the decree challenged was passed by Shri Gulshan Kumar, Additional District Judge, Delhi in HMA No. 682/2007).

The appellant husband challenged that judgment and decree in the present appeal, contending that the decree was passed in undue haste without affording him sufficient opportunity, and that waiver of the six-month period deprived him of statutory time to consider the decision. The respondent denied coercion and asserted that the six-month period is directory and had been properly waived; the respondent also set out settlement steps (payment and transfer of property) and said those acts showed a conscious decision to seek divorce by mutual consent.

Legal Issues Presented

  1. Whether the trial court was competent to waive the statutory six-month period prescribed under Section 13B(2) of the Hindu Marriage Act and proceed to grant a decree of divorce by mutual consent.
  2. Whether the decree of divorce was procured in undue haste or without affording adequate opportunity to the appellant (i.e., whether consent was obtained by force, fraud, undue influence, collusion or otherwise vitiated).

Arguments of the Parties

Appellant's Arguments

  • The statutory six-month period under Section 13B(2) HMA cannot be waived because that period alone allows parties sufficient time to reconsider and take a rational final decision.
  • The trial court passed the decree in undue haste without giving the appellant sufficient opportunity.
  • The respondent obtained the appellant's signatures on the second motion petition and the waiver application with the alleged intent to grab the appellant's property; the respondent had previously obtained a mutual-consent divorce to grab property from a prior husband (allegations asserted by counsel for the appellant).

Respondent's Arguments

  • The six-month period under Section 13B(2) is directory and not mandatory; the trial court correctly waived the period.
  • The appellant voluntarily gave consent; there was no force, fraud or undue influence used to obtain the consent.
  • The appellant was a signatory to the joint petition and the waiver application and also gave oral statements before the court; the trial court was satisfied before passing the decree.
  • The parties had been living separately since 2 August 2006; they settled disputes for a sum of Rs. 1,40,000 (Rs. 70,000 paid at first motion and Rs. 70,000 by demand draft at second motion), and the appellant transferred property rights (house bearing No. G-8/200, First and Second Floor, Sector 16, Rohini, Delhi with roof rights) to the respondent; custody arrangements and withdrawal of a complaint were also addressed — these overt acts showed implementation of settlement and a conscious decision to seek divorce by mutual consent.
  • The appeal is an abuse of process and the appellant is estopped from challenging the decree which was passed after deliberation and satisfaction of the court that the consent was voluntary.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Arvind Sharma v. Dhara Sharma (Civil Revision Petition No. 1121/1997) The High Court's view that the six-month period under Section 13B(2) is directory and can be waived where other requirements are satisfied. The court treated this decision as authoritative and cited it in support of the proposition that Section 13B(2) is directory in nature and may be waived.
Anita Sharma v. Nil, AIR 2005 Delhi 365 Held that the six-month period under Section 13B(2) is directory, not mandatory; set out supporting reasoning and cited Karnataka High Court authorities. The judgment's relevant paragraphs were reproduced and relied upon; the court stated its respectful agreement with Anita Sharma to the effect that Section 13B(2) is directory.
Smt. Roopa Reddy v. Prabhakar Reddy, AIR 1994 Karnataka 12 Held that the six-month requirement in Section 13B(2) is directory and discussed legislative intent to liberalise divorce by mutual consent; reasoned that strict mandatory reading would frustrate legislative purpose. The court expressly followed and quoted the Roopa Reddy reasoning, endorsing the view that Section 13B(2) is directory in substance.
Pooja Gupta and Another v. Nil (FAO 756 of 2003) Explained legislative intent for expeditious disposal of mutual-consent divorces and listed factors relevant to granting exemption from waiting periods (e.g., maturity, absence of coercion, duration of marriage, absence of possibility of reconciliation, lack of frivolity, lack of misrepresentation, age and matrimonial consequences). The court applied these considerations (listed in the judgment) to the facts, using them as a framework to judge whether waiver and exemption were appropriate in the present case.
Svensha Handelsbanken v. Indian Charge Chrom (1994) 1 SCC 502 Principle that allegations of fraud (or akin vices) must be established beyond reasonable doubt; findings of fraud cannot be based on suspicion or conjecture. The court relied on this principle to hold that mere allegations by the appellant that the respondent grabbed immovable property and money, unsupported by evidence, were insufficient to vitiate consent.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps, based strictly on the materials and arguments presented:

  1. The court noted the chronology: marriage on 14.12.2004, parties living separately w.e.f. 2.8.2006, joint petition under Section 13B(1) filed on 4.8.2007 (first motion allowed), and the second motion under Section 13B(2) allowed on 8.8.2007 after a jointly moved waiver of the six-month period.
  2. The core legal question identified was whether the trial court was competent to waive the six-month period prescribed by Section 13B(2) HMA.
  3. The court observed that the issue was not res integra, citing prior High Court decisions (Arvind Sharma; Anita Sharma) and Karnataka High Court authority (Roopa Reddy) which held that Section 13B(2)'s six-month period is directory and may be waived when other statutory requirements are fulfilled.
  4. The court examined factual indicators of voluntariness and implementation of settlement: joint affidavit and joint application for waiver; statements of parties recorded by the trial court; payment of Rs. 1,40,000 by the appellant to the respondent in two instalments (Rs. 70,000 at first motion and Rs. 70,000 by demand draft at second motion); transfer of ownership rights in the appellant's property to the respondent; agreement regarding custody and withdrawal of a complaint. The court concluded these overt acts demonstrated a conscious decision by both parties to seek divorce by mutual consent.
  5. The court applied the Pooja Gupta factors (maturity, absence of coercion/undue influence, duration, absence of possibility of reconciliation, lack of frivolity, absence of misrepresentation/concealment, age considerations) as relevant indicia for allowing waiver/exemption. It noted the one-year separation requirement under Section 13B(1) was satisfied.
  6. The court found that the learned trial court had recorded statements, made efforts for reconciliation, and had been satisfied that the consent was not obtained by force, fraud or undue influence and that the petition was not collusive.
  7. Addressing the appellant's allegations of fraud and undue influence, the court observed that such vitiating factors must be specifically pleaded and proved; relying on Svensha Handelsbanken it reiterated that fraud must be established beyond reasonable doubt and cannot rest on suspicion or conjecture. The appellant had not produced evidence to substantiate the allegations of coercion or property grabbing.
  8. On this basis, and in light of binding and persuasive precedents that treat the six-month period as directory, the court concluded the trial court was competent to waive the statutory period and properly passed the decree of divorce by mutual consent.

Holding and Implications

Holding: The appeal is dismissed.

Implications:

  • The decree of divorce by mutual consent passed under Section 13B(2) of the Hindu Marriage Act (order dated 8.8.2007) is upheld and remains in force; the appellant's challenge is rejected.
  • The court reaffirmed and applied the existing line of authority (including Roopa Reddy, Anita Sharma, Arvind Sharma and Pooja Gupta) holding that the six-month waiting period prescribed by Section 13B(2) is directory and may be waived where statutory safeguards and other requirements are satisfied.
  • The court held that allegations of vitiating conduct like fraud or undue influence must be specifically pleaded and supported by evidence; mere unsubstantiated allegations are insufficient to set aside a consent decree.
  • The opinion did not purport to lay down a novel legal principle; rather, it applied and endorsed existing precedent and applied those principles to the facts to uphold the decree.

This summary is confined strictly to the information contained in the provided opinion and does not add or infer facts or holdings beyond that text.

Show full summary ...

    Parshotam Lal v. Surjeet Kaur

    Kailash Gambhir, J. Oral::— Decree of divorce granted by the Trial Court by mutual consent under Section 13B(2) of the Hindu Marriage Act is under challenge in the present appeal.

    2. Brief facts for deciding the present appeal inter-alia are that the appellant husband and the respondent wife jointly filed a petition under Section 13B(1) of the Hindu Marriage Act on 4th August, 2007 and the said petition was registered as HMA case No. 656/2007. The learned Trial Court heard both the parties on the same date after recording statement of the parties and first motion as envisaged under Section 13B(1) HMA Act was allowed. Thereafter the parties had moved application under Section 151 CPC seeking waiver of six months period so as to enable them to file the second motion as envisaged under Section 13B(2) of the Hindu Marriage Act. The said waiver application moved by the parties was allowed and on the second motion respective statements of the parties were recorded and the matter was heard by learned Trial Court whereafter order under Section 13B(2) of Hindu Marriage Act was passed thereby dissolving the marriage between the parties by decree of divorce by mutual consent.

    3. In the present appeal the said judgment and decree dated 8.8.2007 passed by the learned Trial Court of Shri Gulshan Kumar, Additional District Judge, Delhi in HMA No. 682/2007 is under challenge by the appellant husband. The main grievance raised by the appellant husband in the present appeal is that the judgment and decree has been passed by the learned Trial Court in undue haste without affording any sufficient opportunity to the appellant. The other grievance raised by the appellant is that due to the grant of waiver of six months period the appellant was not able to apply his mind and think over the matter before taking any final decision on the second motion and therefore, the appellant has been deprived of the statutory period as provided under Section 13-B of the Hindu Marriage Act and due to deprivation of the said period there is not only miscarriage of justice but the order itself cannot sustain being illegal.

    4. Counsel appearing for the appellant contends that the statutory period of six months as provided under Section 13-B(2) of the Hindu Marriage Act, cannot be allowed to be waived as during this period alone, parties to the marriage can take a rational decision with sufficient time at their disposal to give rethinking to their decision.

    5. Counsel for the appellant further submits that the respondent got signed from the appellant second motion petition as well as waiver application as the respondent had evil designs to grab the property of the appellant. Counsel for the appellant further submits that earlier also, the respondent got divorce by mutual consent so as to grab the property of her previous husband.

    6. Per contra, counsel appearing for the respondent refutes the said submission made by the counsel for the appellant. Counsel for the respondent submits that the period of six months as provided under Section 13-B(2) of the Hindu Marriage Act is merely directory and not mandatory and therefore, the Tribunal has rightly and correctly waived the statutory period of six months. Counsel for the respondent further submits that the consent given by the appellant was voluntary and there was no exercise of any kind of force, fraud or undue influence upon the appellant for obtaining his consent.

    7. Counsel for the respondent further submits that the appellant himself is a signatory to the joint petition as well as the application moved for waiver of the statutory period of six months. Not only this, the appellant himself came forward to give statement before the Court and it is only after complete satisfaction of the court, the court had passed a decree under Section 13-B(2) of the Hindu Marriage Act. Counsel for the respondent further submits that the parties had been living separately from each other w.e.f 2.8.2006 due to their temperamental differences and they had settled all their disputes and claims for a sum of Rs. 1,40,000/- and it is the appellant himself who had paid Rs. 70,000/- to the respondent at the time of recording of statement at the time of first motion petition and the balance amount of Rs. 70,000/- was paid by him by way of demand draft bearing No. 496663 drawn on Bank of Maharashtra, Rohini, Delhi at the time of second motion. Not only this, the appellant had also transferred ownership rights of his house bearing No. G-8/200, First and Second Floor, Sector 16, Rohini, Delhi with roof rights in favour of the respondent. The appellant had also agreed not to interfere with the custody of the children which continued to remain with the respondent. Respondent No. 2 had also undertaken to withdraw the complaint filed by her in Crime against Women Cell, Pitampura. The contention of learned counsel for the Respondent is that the terms of settlement as agreed between the parties were totally implemented from both sides and conscious decision was taken by the parties to seek divorce by mutual consent and therefore, the appellant cannot be allowed to challenge the said divorce decree on totally false and filmsy pleas raised by the appellant. The appellant is rather estopped under law to challenge the said decree which was passed after complete deliberations between the parties and their counsel. Counsel for the respondent submitted that the present appeal filed by the appellant is nothing but gross abuse of process of court.

    8. I have heard learned counsel for the parties and have perused the record.

    9. Marriage between the parties was solemnized on 14.12.2004 It is not in dispute that the parties have been living separately. Since both the parties have jointly moved their petition under Section 13-B(1) of the Hindu Marriage Act and then under Section 13-B(2) of the Hindu Marriage Act, the application seeking waiver of the statutory period of six months was also moved jointly by the parties. In support of this application, they had also executed and had sworn in their respective affidavits. Statements were also recorded by the trial court. It is also not in dispute that a sum of Rs. 1,40,000/- was paid by the appellant to the respondent at two different stages and even the property of the appellant was transferred in favour of the appellant. With all these overt acts committed by the parties it cannot be said that there was no conscious decision taken by the parties to seek divorce by way of mutual consent.

    10. The only question which requires consideration is whether the trial court was competent in granting waiver of the period of six months as prescribed under Section 13-B of the Hindu Marriage Act.

    11. This issue is no more res integra as our own High Court in Civil Revision Petition No. 1121/1997 entitled Arvind Sharma v. Dhara Sharma. and in AIR 2005 Delhi 365 Anita Sharma v. Nil, has taken a view that period of six months as provided under Section 13-B(2) of the Hindu Marriage Act is directory in nature and in a case where all other requirements are satisfied then the said period of six months can be waived. In this regard the relevant paragraphs of the judgment in Anita Sharma's case (Supra) is reproduced below:

    “(c) Karnataka High Court in Smt. Roopa Reddy v. Prabhakar Reddy, AIR 1994 Karnataka 12 where it was held that the period of 6 months provided under Section 13B-2 is directory and not mandatory and the following position of law was laid down:—

    “13. The next question is whether the requirement under S. 13-B of the Hindu Marriage Act has to be considered as mandatory or directory. The words used in the Section shall have to be read in the context in which the liberlised provision has been made by the legislature enabling the unwilling parties to seek divorce instantaneously and thus to put an end to the untold misery. When the intention of the Legislature in introducing S. 13-B(2) is to liberalise and to unlock the wedlock the legislature has never intended the period of 6 months mentioned in the Act shall be strictly complied with. But, in spirit the Section is directory in nature and it has been incorporated to help 2 discordant spouse to get quick separation and to lead their remaining life without any agony. If S.13-B(2) is read as mandatory, the very purpose of liberalising the policy of decree of divorce by mutual consent will be frustrated. Thus, S. 13- B(2), though it is mandatory in form is director in substance.

    18. Marriage is an union of 2 hearts. Success of married life depends on the edifice built with the mutual trust, understanding, love affection service and self sacrifice. Once this edifice is shaken, happy married life will be shattered into pieces. The result is one of the misery and emotion. Whether one accepts it or not liberalisation in the away of living of individuals and reformation in age old customs and due to modernisation and understanding of individual rights and equal status irrespective of sex it is natural for either of the spouse to seek for dissolution. Where the marriage tie has been broken the court has to look to the interest of the parties and the welfare of the children as paramount. When it is impossible to live like husband and wife, any compulsion to unite them will lead to social evils and disturbance of mental peace and disorder in the family life. However, rigid social fabric it is not the social system but the personal safety of the parties to the wedlock, shall pre.ail This should be the guiding principle in view of S.13B(1) of the Act. There is complete destruction of the essence of marriage between parties and it has reached the stage of irretrievable breakdown. 19. In the background of the circumstances narrated in the case, the request made by both parties for divorce by mutual consent is the only just and proper way to allow them to spend their remaining period of life happily with contentment instead of compelling them to lead a miserable and emotional life without any constructive purpose.”

    I am in respectful agreement with the view taken by the Karnataka High Court in Smt. Roopa Reddy's case (supra) to the effect that the provisions of section 13b(2) are directory and not mandatory.

    8. This Court also in a judgment in FAO 756 of 2003 in Pooja Gupta and Another v. Nil in respect of a petition under Section 13 B(1) of the Act had held as follows:

    “The above statement of objects and reasons though made in the context of parity with Section 28 of Special Marriage Act also clearly indicates that the legislative intent was expeditious disposal of divorces by mutual consent. In my view as long as the Court is satisfied as an essential reason for exemption for filing a divorce by mutual consent prior to expiry of one year after the marriage that the plea for mutual consent is not under coercion/intimidation or undue influence and there are no chances of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent, the continuance of such a marriage is bound to cause undue hardship to the spouses. The other relevant considerations which may be considered for granting the exemption from passage of one year before filing a petition for divorce by mutual consent are:—

    (a) the maturity and the comprehension of the spouses;

    (b) absence of coercion/intimidation/undue influence;

    (c) the duration of the marriage sought to be dissolved;

    (d) absence of any possibility of reconciliation;

    (e) lack of frivolity;

    (f) lack of misrepresentation or concealment

    (g) the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties

    12. In the facts of the present case, the marriage between the parties was solemnized on 14.12.2004 and they were living separately w.e.f 2.8.2006 A joint petition moved by the parties under Section 13-B(1) of the Hindu Marriage Act was allowed vide order dated 4.8.2007 and the second petition under Section 13-B(2) was allowed vide order dated 8.8.2007 It will be thus evident that joint petition under Section 13-B(1) was moved after expiry of one year from the date after they started living separately. So this requirement of separation of one year as envisaged under Section 13-B(1) is fully satisfied.

    13. Para 4 of the impugned judgment would show that efforts were made by the Court also for effecting reconciliation between the parties but the same did not yield any result. Statements of both the parties were recorded and the learned trial court after feeling satisfied that the consent of the parties for obtaining divorce by mutual consent was not obtained by force, fraud or undue influence and the petition was not filed by them in collusion with each other, then the said decree of divorce by mutual consent was passed.

    14. The Court was fully satisfied, as both the parties had fully honoured their part of settlement as agreed between them. Counsel for the appellant has failed to point out as to how and in what manner the appellant was constrained to agree to the filing of second motion petition or for seeking waiver of the said six months' period. The appellant has further failed to give any explanation as to how the petitioner No. 1 had agreed to pay the said sum of Rs. 1.40,000/- to his wife besides transferring the ownership rights of his property in her favour. Acts of ‘undue influence’, ‘fraud’ etc., are cognate vices and need to be specifically pleaded and proved. Mere allegation that the respondent had grabbed the immovable property of the appellant and also huge amount, unsupported with any document or evidence, is not sufficient. In this regard in Svensha Handelsbanken v. Indian Charge Chrom (1994) 1 SCC 502, the Hon'ble Apex Court observed as under:

    “42. Fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture.”

    16. No allegations of fraud or exercise of any kind of force on the appellant by the respondent wife has also been made. The appeal filed by the appellant is wholly misconceived and devoid of any merit and the same is hereby dismissed.

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    Comments

    Parshotam Lal v. Surjeet Kaur
    (Feb 12, 2008)