Dineshkumar Shukla v. Neeta

1. Noticing diametrical opposite views taken by co-ordinate benches learned single Judge has referred the following question to resolve the conflict of views.

"Whether the Court is required to wait for a period of 6 months under Section 13B of the Hindu Marriage Act when a joint petition for divorce is filed in a pending case instituted under Section 13(1) of the Act and which has been pending for more than 6 months ?"

2. Facts lies in a narrow compass. On 26-11-1987, marriage between applicant and respondent was performed as per Hindu rites. Out of wedlock, one daughter-Prachi was born on 24-11-1988. It appears that relations between the parties instead of ripening into mutual love and affection for each other, soured and applicant and respondent were unable to enjoy the bliss of happy married life for long. On 8-1 -1996, applicant filed petition under Section 13(1) in the Court below seeking divorce and dissolution of marriage on the ground of cruelty and desertion. Although respondent wife resisted the petition but all efforts made by the Court below for reconciliation were in vain. During the pendency of petition for divorce, on 1-9-1998 both husband and wife made a joint petition under Section 13B of the Act for divorce and dissolution of marriage by mutual consent. Learned Court below placing reliance on decision of single Bench reported in 1997 (1) Jab LJ 32 (Manju Kohli), by the order impugned dated 1-9-1998 refused to pass the decree for divorce immediately holding that waiting period of six months is mandatory therefore before expiry of six months period as envisaged by sub-section (2] of section 13b no decree for mutual divorce could be passed.

3. Applicant challenged the order of trial Court in the above revision. At the time of hearing, learned single Judge noticed contrary views taken in the decisions of this Court reported in (1994) 2 DMC 548 and 1995 (I) MPWN (SN) 2. Learned single Judge also noticed views taken by Delhi and Kerala High Courts reported in AIR 1990 Delhi 146 and AIR 1998 Kerala 97 respectively where waiting for six months in a given set of facts and circumstances was held to be director. In view of conflict of views taken in Manju Kohli's case (1997 (1) Jab LJ 32) (supra) and view taken in (1994) 2 DMC 548 and 1995 (1) MPWN (SN) 2, the previously mentioned question was framed, and referred to Hon'ble the Chief Justice for suitable order. Hon'ble the Chief Justice constituted division Bench to hear and decide the matter. That is how the matter is before us.

4. We have heard at length Shri R. C. Kochatta, learned counsel for applicant, Shri G. M. Chaphekar and Shri B. L. Pawecha, learned senior counsel with Smt. Anjali Jamkhedkar, as Amicus Curiae. Perused the material available on record.

5. Before we get on to answer the question referred, it would be pertinent to mention that during the pendency of the present revision, trial Court upon expiry of six months, ultimately passed a decree for divorce between the parties. The said decree has been acted upon. In fact, Shri Kochatta learned counsel appearing for applicant submitted that after obtaining the decree for divorce, applicant remarried and is leading meaningful married life. So appears to be the case with respond, as she also despite service did not respondent to notice issued by this Court. In view of the aforesaid, apparently nothing seems to be left to be decided between the parties; however, keeping in view the conflicting views taken by different single Bench of this Court, we have heard arguments to resolve the conflict 'between the decisions of co-ordinate single Bench of this Court so as to make the legal position explicit and to iron out the creases.

6. Shri Kochatta, learned counsel for the applicant submitted that the view taken by learned single Judge in Manju Kohli's case (1997 (1) Jab LJ 32) is based upon the view taken by the Supreme Court in Sureshta Devi reported in AIR 1992 SC 1904. The propriety of the aforesaid view itself has been questioned by the Supreme Court in the later decision reported in AIR 1997 SC 1266. Shri Kochatta, therefore, submitted that the view taken in Manju Kohli's case does not represent the correct interpretation of the Sub-section (2) of Section 13B of the Act. He submitted that the view taken in Padmini v. Hemant Singh reported (1994) 2 DMC 548 and Ravi v. Madhu Arora, 1995 (1) MPWN (SN) 2 and Mahesh Kumar v. Sunita, 1998 (2) MPWN (SN) 56 are the correct views and the same should be approved. He also referred to another single Bench decision reported in 2000 (1) DMC 490, Smt. Ratna Kanthale v. Rajendra Kanthale.

7. Learned Amicus Curiae referred to Deepak v. Rani, 2000 (2) MPLJ (SN) 26, Smt. Preetha Nair v. Gopkumar, (2001) 2 DMC 170, Deepak Kulkarni v. Tanuja, 2003 (2) Jab LJ 121, wherein learned single Judges of this Court have held that the provisions of sub-section (2) of Section 13B are directory and decree of divorce on mutual consent can be passed without waiting for the expiry of period of six months from the date of application, if the petition for divorce was pending from long. Learned Amicus Curiae also referred to the decision of Punjab and Haryana High Court reported in 2003 (2) DMC 270, Indrajeet Kaur @ Tarlochan Kaur v. Mohinder Singh; (2003) (1) DMC 588, Kuldip Singh v. Smt. Surinder Kaur; (2002) 2 DMC 699, Smt. Roshniv. Dalsher; (2001) 1 DMC 297, Mohinder Pal Kaur v. Gurmit Singh wherein consistently it has been held that under sub-section (2) of section 13b, the waiting period can be brought down from six months, where a divorce petition was already pending for more than six months. It was also contended that the provisions prescribing time-limit for doing any act are generally presumed to be directory. In support of this contention, reliance has been placed on the decision of the Supreme Court reported in AIR 2003 SC 4603. He also referred to decision of Andhra Pradesh High Court reported in AIR 1986 AP 167, decision of Gujarat High Court reported in AIR 1988 Guj 159 and decision of Delhi High Court reported in AIR 1990 Delhi 146. Learned Amicus Curiae also drew our attention to Page 311 of the 'Principles of Statutory Interpretation' (Eighth Edition) authored by the former Chief Justice of this Court, Shri G. P. Singh, wherein the principle to determine whether the provision is directory or mandatory has been discussed.

8. After having heard learned counsel for the parties at length, we are of the considered view that the provisions of sub-section (2) of Section 13B are directory in nature and the waiting period can be brought down from six months when a divorce on mutual consent is sought in a divorce petition already pending for more than six months and all efforts for reconciliation have failed. A bare perusal of Section 13B of the Act would reveal that the Court gets jurisdiction if the following mandatory requirements are fulfilled.

A. There must be a petition jointly made to the Court by both the parties to the marriage;

B. That the parties are living separately as husband and wife for a period of one year or more before the presentation of the application;

C. That they have not been able to live together as husband and wife; and D. That they have mutually agreed that the marriage should be dissolved.

9. Now the question is whether provisions contained in sub-section (2) are mandatory or directory. Ordinarily, filing of petition with mutual consent does not authorize the Court to pass a decree for divorce. There is a period of waiting from six to eighteen months. This interregnum period is obviously intended to give time and opportunity to the parties to think again and to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have second thoughts and change the mind not be proceed with the petition. It cannot be assumed 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 a decree of divorce. At the time of the petition by mutual consent, the parties are aware 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 13B is clear on this point. What is significant in this provision in that there should also be mutual consent when they move the Court with a request to pass a decree of divorce and obligation is also cast on the Court to satisfy about the bona fide and the consent of the parties. If there is mutual consent at the time of enquiry, the Court gets jurisdiction to pass a decree for divorce.

10. Thus, 'jurisdiction' is the power and authority conferred by law upon a Court to decide the dispute and pass judgment and orders authorised by law. There are, in general three jurisdictional elements in every valid judgment, namely, jurisdiction of subject-matter, jurisdiction of the person and the power or authority to render particular judgment. Absence of any of these jurisdictional elements would render the judgment void and a mere nullity. However, every order made in contravention of some provision of law cannot necessarily be treated as order without jurisdiction or a nullity. In civil litigation every party has a right to waive the advantage made for his benefit and protection. However, there can be no waiver of a statutory requirement which is imposed in public interest. If the object of a statute is not one of general policy, or if the thing which is being done will benefit only particular person then the conditions prescribed by the statute is not considered as being indispensable. This rule is expressed by the maxim of law "Quilibet protest renuntiare juri pro se introducto". (An individual may renounce a law made for his special benefit). As a general rule, the conditions imposed by statute which authorise legal proceedings are treated being indispensable to giving the Court Jurisdiction. But if it appears that statutory conditions are inserted by legislature simply for the benefit of the parties to the action and that no public interest is involved, such conditions can be waived without affecting the jurisdiction of the Court. As noticed earlier, there is interregnum period so that parties can have second thought over the matter. This procedural interregnum is provided for the benefit of parties in case for divorce. They can certainly waive this period of interregnum where the marriage is broken irretrievably. Where during the pendency of petition for divorce either at the instance of husband or wife, both husband and wife jointly make an application and fulfill the mandatory requirements of Section 13B(1), in the considered opinion of this Court the waiting period can be brought down, provided the Court trying the main issue and on an enquiry is satisfied that the parties have consented for mutual divorce without duress, misrepresentation, force or fraud and there is no chance of reconciliation. In such situation Court may pass a decree for divorce. If the parties are litigating for long time and all the efforts for the reconciliation had proved abortive, it will not be in the interest of justice and in the spirit of the provisions of statute to deny the relief by not reducing the waiting period. This would only prolong the agony. No prejudice is going to be caused to either of party. If the legislature's intention was that provisions of sub-section (2) are mandatory it could have provided consequences for the breach of provisions of sub-section (2) of Section 13B. No such provision has been incorporated when the Act was amended in the year 1976 and Section 13B was introduced. It is well established that the statutory provision which are procedural in nature may not always held to be mandatory, if thereby no prejudice is caused. Prescribing the time limit for doing any act is generally presumed to be directory.

11. From the decisions cited, it is clear that provision of sub-section (2) of Section 13B has been held to be directory and not mandatory. This appears to be the consistent view.

12. In view of the foregoing discussion, in the considered opinion of this Court, the law laid down in Manju Kohli's case (1997 (1) Jab LJ 32) does not represent the correct law specially in view of the fact that in a subsequent decision, the Supreme Court itself has doubted the correctness of the view taken in the earlier decision reported in AIR 1992 SC 1904. We, therefore, overrule the decision given in Manju Kohli's case and approve the view taken in Padmini v. Hemant Singh reported (1994) 2 DMC 548; Ravi v. Madhu Arora, 1995 (1) MPWN (SN) 2; Mahesh Kumar v. Sunita, 1998 (2) MPWN (SN) 56; Smt. Ratna Kanthale v. Rajendra Kanthale, (2000) 1 DMC 490; Deepak v. Rani, 2000 (2) MPLJ (SN) 26; Smt. Preetha Nair v. Gopkumar, (2001) 2 DMC 170; Deepak Kulkarni v. Tanuja, 2003 (2) Jab LJ 121 and hold that in a petition for divorce under Section 13(1) pending for more than six months and thereafter, during the pendency of the petition, if a joint application is 'made for divorce on mutual consent, the Court, subject to fulfillment of mandatory provisions of section 13b(1), the Court in a given case need not wait for six months and can pass a decree after holding the enquiry as indicated hereinabove without waiting for the expiry of six months from the date of presentation.

13. In view of the aforesaid, the question is answered accordingly as has been indicated hereinabove. The question referred was purely a legal question and keeping in view the fact that the present revision was directed against the interim order dated 1 -9-1398 and subsequent thereto a decree of divorce has been passed and acted upon, we hold that nothing survives for decision In the present revision. Same is accordingly disposed of. No order as to costs.

14. Before parting with case, we Greatly appreciate the valuable assistance rendered by Shri G. M. Chaphekar and Shri B. L. Pavecha as Amicus Curiae whtvhad readily agreed to act as such.