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Dr. Dhiran Harilal Garasia v. N. Mansu .
Factual and Procedural Background
The appellant (husband) originally filed Hindu Marriage Petition No. 81 of 1984 seeking restitution of conjugal rights under S. 9 of the Hindu Marriage Act, 1955. The respondent (wife) filed a written statement denying the petitioner's allegations. The trial Judge found that the petitioner failed to establish that the wife had, without reasonable cause, withdrawn from his society, and accordingly dismissed the petition. The petitioner appealed to this Court.
During appellate proceedings, the Court undertook repeated efforts to secure reconciliation between the parties so that they might live together with their two children (a son and a daughter). Reconciliation proved impossible. The petitioner applied to amend the original petition to permit a prayer for divorce by mutual consent under S. 13B of the Hindu Marriage Act; the opponent agreed to the amendment. The amendment was granted by this Court (the opinion records the amendment being granted on 18-3-1987 in one paragraph and on 19-3-1987 in another passage). After amendment, the original petition for restitution of conjugal rights was to be treated as a joint application for divorce by mutual consent under S. 13B, accompanied by a joint Purshis which was placed on record.
The Court noted the parties' respective custody arrangements: the daughter Pinal was staying with the mother and the son with the father. The Court required, and kept on record, an undertaking by the petitioner that he would maintain the minor daughter Pinal despite her living with her mother and despite the mother's undertaking not to claim maintenance for the child. The Court also recorded undertakings by both parties to withdraw other pending litigations between them.
Legal Issues Presented
- Whether the original petition for restitution of conjugal rights, once amended with the consent of both parties, could be treated as a petition for divorce by mutual consent under S. 13B of the Hindu Marriage Act.
- Whether the amendment could be treated as relating back to the date of presentation of the original petition for purposes of computing the six-month waiting period prescribed by S.13B(2).
- Whether the six-month waiting period in S.13B(2) is mandatory (jurisdictional) or directory (permissive), and consequently whether a Court may pass a decree for divorce by mutual consent before the expiry of that six-month period in appropriate circumstances.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Indrawal v. Radhey Raman, AIR 1981 All 151 | Example where a petition for divorce (after appellate compromise) was treated under S.13B and a decree for divorce was granted. | The Court referenced this Allahabad High Court decision to show that a petition may be treated as one under S.13B after compromise/amendment and that a decree for divorce can be passed under S.13B in such circumstances. |
| K. Omprakash v. K. Nalini, AIR 1986 Andh Pra 167 (Division Bench) | Support for the view that the six-month provision of S.13B can be read as directory rather than strictly mandatory, allowing discretion in exceptional cases. | The Court relied on this Division Bench judgment to fortify its view that S.13B(2)'s six-month waiting period may be treated as directory and that an appellate court may, in appropriate circumstances, pass a decree for divorce before the expiry of six months. |
Court's Reasoning and Analysis
The Court's reasoning proceeded in the following stages, as set out in the opinion:
- Reconciliation attempts: The Court made multiple attempts to reconcile the parties after the appeal was filed but concluded that reconciliation was not possible and that the marriage had effectively reached a deadlock.
- Amendment and treatment as S.13B petition: With the consent of both parties the appellant's petition (originally under S.9) was amended and ordered to be treated as a joint petition for divorce by mutual consent under S.13B; the joint Purshis was put on record.
- Textual analysis of S.13B(2): The Court quoted S.13B, including subsection (2) which prescribes that a request for decree may be made not earlier than six months and not later than eighteen months from the date of presentation of the petition. The Court noted that subsection (2) appears to require waiting for six months before passing a decree.
- Relation back of amendment: The opinion notes that the original petition was filed on 9-3-1984 and that the amendment was granted in March 1987; the Court observed that the amendment could relate back to the date of presentation of the original petition, which would mean the six-month period had already elapsed.
- Mandatory versus directory: The Court undertook a legal-policy analysis and concluded that although the six-month provision is cast in mandatory language, it should be treated as directory rather than jurisdictional. The Court reasoned that S.13B was enacted to liberalize relief for parties seeking dissolution by mutual consent and to recognize the contractual element of modern Hindu marriage, thereby avoiding the forcible perpetuation of marriage between unwilling spouses. The Court expressed that S.13B(2) is procedural in character and should be interpreted as a "handmaid of justice" to further, not frustrate, just outcomes.
- Practical considerations and discretion: The Court observed that a strictly mandatory reading could produce unjust results (e.g., inability to pass a decree within the 18-month window in some cases). Therefore, the provision should be treated as directory. Nevertheless, the Court cautioned that this permissive reading does not obligate courts to pass a decree before six months in all cases; the decision must be exercised judicially and depend on the facts of each case.
- Reliance on precedent: The Court cited Indrawal v. Radhey Raman to show that conversion/treatment under S.13B has been permitted, and K. Omprakash v. K. Nalini to support the directory interpretation of the six-month rule; these authorities fortified the Court's conclusion that an appellate court may grant a decree for divorce by mutual consent even before six months where circumstances justify it.
Holding and Implications
Holding:
The appeal is allowed. The order of the trial Court dismissing the petition for restitution of conjugal rights is set aside because that petition does not survive in view of the amendment. The joint application for divorce by mutual consent under S.13B is granted and a decree for divorce by mutual consent is ordered to be passed declaring the marriage dissolved with immediate effect. The parties are to bear their own costs throughout.
Direct consequences and other orders recorded in the opinion:
- The decree for divorce is to be passed immediately (i.e., with immediate effect as ordered by the Court).
- The petitioner gave an undertaking (dated 3-8-1987) to maintain the minor daughter Pinal despite her residing with the mother and the mother's stated intention not to claim maintenance; that undertaking is ordered to be kept on record.
- Both parties gave undertakings to withdraw other pending litigations between them; those undertakings have been kept on record.
- Parties were directed to bear their own costs.
Broader legal implication articulated by the Court (as expressed in the opinion):
The Court articulated that the six-month waiting period prescribed by S.13B(2) can be treated as directory rather than strictly mandatory in appropriate circumstances, and that an appellate court may in a given case pass a decree for divorce by mutual consent even before the expiry of six months when reconciliation is impossible and the parties' wedlock has effectively broken down. The Court emphasized that this discretion must be exercised judicially on the facts of each case.
The opinion records the Court's interpretative position on S.13B and the factual orders made in this case; it does not expressly state that it is laying down a binding ratio beyond the decision rendered.
Order: Decree for divorce by mutual consent granted; order accordingly.
1. The appellant filed Hindu Marriage Petition No. 81 of 1984 against the respondent for restitution of conjugal rights under S. 9 of the Hindu Marriage Act, 1955. The opponent wife filed her written statement therein denying the allegations made in the petition. The learned trial Judge held that the petitioner husband was unable to establish that the opponent-wife had, without reasonable cause, withdrawn from his society. The learned trial Judge accordingly rejected the petition. Being dissatisfied with the same, the present appeal has been filed before this Court by the original petitioner.
2. When the matter came up for hearing before this Court, many efforts were made to see that there was reconciliation between the petitioner and the opponent so that they may reside happily along with their two children, a son and a daughter respectively begotten by the wedlock, but it appeared that it was not possible for the petitioner and the opponent to reside together. The petitioner has filed an application before this Court for amendment of the original petition and for permitting to pray for divorce by mutual consent. The opponent has also agreed to the said amendment. The said amendment has been granted by this Court on 18-3-1987. The original petition for restitution of conjugal rights is therefore, now to be treated as a joint application for divorce by mutual consent. The parties have also given a joint Purshis that the original petition filed in the trial court, which is permitted to be amended. may now be treated as a joint application for divorce by mutual consent under S.13B of the Hindu Marriage Act and the said Purshis has also been kept on record.
3. As stated a little earlier, many efforts were made by this Court to have reconciliation between the parties and see that they resided happily together, but it was not possible to do so. Even after the amendment was allowed in the month of March, 1987 the parties were called by me and efforts were made to see that there was reconciliation, but it appears that it is not possible for the petitioner and the opponent to reside together. In view of this, there is no other alternative but to pass a decree for divorce by mutual consent.
4. It appears that out of the two children, the daughter Pinal is staying with the mother and she is going to stay with her and she is going to be maintained by her, while the son is staying with the father and the father has to maintain him. Now, so far as the minor daughter Pinal is concerned. the petitioner is bound to maintain her even if she stays with the mother. The petitioner cannot be absolved from the liability pf maintaining the minor Pinal. In view of this, at the suggestion of this Court, the petitioner Dr. Dhiren Harilal Goradia has failed an undertaking to the effect that even though the minor daughter Pinal is staying with the mother and even though no maintenance is demanded for her and even though the mother has stated that she will not demand any maintenance for the minor daughter, the petitioner- husband is ready and willing to maintain the minor daughter and look after her welfare. in spite of the fact that Minaben has given an undertaking that she was not going to claim maintenance for the minor daughter. This undertaking dated 3-81987 is ordered to be kept on record.
5. It appears that some litigations are pending in different Courts between the parties I and both the parties have given undertakings before this Court that they will withdraw those, proceedings pending in different Courts. Those undertakings are kept on record.
6. Section 13B of the Hindu Marriage Act, which provides for divorce by mutual consent reads as follows : -
"S. 13-B. Divorce by mutual consent:
" (1) Subject to tile 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 five 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 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 for divorce declaring the marriage to be dissolved with effect from the date of decree."
" Sub-section (2). of S. 13B says that the Court should wait for six months before passing the decree for divorce. In the present case, the original petition for restitution of conjugal rights under S. 9 was filed by the present appellant sometime in the year 1984 and the said petition was dismissed by the trial Court on 28-3-1985 against which the present appeal has been filed. Before this Court, the application has been amended with the permission of the court and the application is now treated as an application under S. 13B for divorce by mutual consent. In a case before the Allahabad High Court reported in Indrawal v. Radhey Raman, AIR 1981 All 151 a petition for divorce was filed by one of the parties and a decree for divorce was passed by the trial court. In appeal the parties entered into a compromise and prayed that the decree for divorce may be granted under S. 13B of the Act. That request was granted by the appellate Court. In the present case also the amendment is sought for before this court to treat the petition for restitution of conjugal rights as a petition for divorce by mutual consent and that has been granted by this Court. Decree for divorce by mutual consent can, therefore, be passed under S. 13B of the Hindu Marriage Act."
" 7. Sub-section (2) of S. 13B, of course, provides that decree for divorce has to be passed after the expiry of, six months from the date of presentation of the petition for divorce by mutual consent. The amendment is granted by this Court on 19-3-1987 and six months have still not elapsed from the date of the said amendment. But at the same time, the original petition was filed on 9-3-84 and more than two years have elapsed since then. The amendment may relate back to the date of the presentation of the original petition and, therefore4 also it can be said that six months have elapsed and, therefore, there cannot be, any objection in passing a decree for divorce. It is again a well settled proposition of law that a statutory provision, though in a. mandatory form, can yet be treated as directory in nature and there are weighty reasons warranting the reading of S.13B, Clause (2) as directory. The Legislature has by enacting S. 13B of the Act liberalized the tendency of providing relief to parties on the basis of their mutual consent from their broken marriages. 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 parties. The provision of the period of six months fixed by S. 13B is not a rule relating to the jurisdiction of the Courts to entertain a petition filed for divorce by consent. The question of jurisdiction is dealt with by S. 13B which must be strictly complied with, while S. 13B is a part of mere procedure. It must, therefore, be interpreted as a handmaid of justice in order to advance and further the interests of justice and not as a technical rule. It is pertinent to note that S. 13B provides that decree has to be passed not earlier than six months and not later than 18 months from the date of presentation of the petition. If we take it that the provision contained in S. 13B is mandatory, then in a given case a Court may not be able to pass a decree for divorce by mutual consent if the period of 18 months has expired for some reasons beyond the control of the In view of this, I am inclined to say that the provision contained in S. 13B is directory and not mandatory. At any rate, this provision cannot come in the way of an appellate Court in passing a decree for divorce by mutual consent in a given case even before the expiry of six months from the date of the presentation of the petition. When a court finds that it is not possible to arrive at a reconciliation between the parties and the parties are living apart long and their wedlock has virtually become a deadlock, it would be futile to wait for a period of six months. Chances of reunion have completely faded away in the present case, and therefore, I think that a decree for divorce by mutual consent should be passed, immediately. I am fortified in this view of mine by a Division Bench judgment of the Andhra Pradesh High Court reported in K. Omprakash v. K. Nalini, AIR 1986 Andh Pra 167. 1 may at the same time add here a word of caution that simply because the provision of S. 13B can be said to be directory, it does not necessarily follow that in all cases the Court should pass a decree for divorce even before the expiry of six months. It will depend upon the facts of each case whether decree should be passed before the expiry of six months 'or the Court should wait for a period of six months or more. The Court will have to exercise its discretion judicially in considering whether decree for divorce by mutual consent should be passed in a particular case even before the, expiry of the. Period of six months."
" 8. As result of the aforesaid discussion, the appeal is allowed, the order of the trial Court dismissing the application for restitution of conjugal rights is hereby set aside because that application does not survive in view of the amendment granted by this Court. The application for divorce by mutual consent is granted and decree for divorce by mutual consent is granted. Decree for divorce declaring the marriage between the parties as dissolved with immediate effect is ordered to be passed. The parties to bear their own costs throughout."
9. Order accordingly.
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