Judgement

B. SUBHASHAN REDDY, J. :- This revision is directed against the Order dated 4-8-1999 passed by the Family Court, Hyderabad in I.A. (SR) No. 2876 of 1999 in O.P. No. 433 of 1999.

2. The matter arises under the Hindu Marriage Act, 1955. The marriage between the parties was solemnized on 7-6-1993 according to Hindu rites. But, strain developed in the relationship in the year 1995 and they have been living separately since then and finding that the marriage is incompatible, they had invoked S. 13-B(2) of Hindu Marriage Act, 1955 seeking divorce by mutual consent and filed a petition to that effect in the Family Court, Hyderabad on 5-7-1999. They have filed an application seeking dispensing with the mandatory six months time wait on the ground that after dissolving the marriage, both the parties want to engage themselves in future activities by going to foreign countries. But, the said plea of dispensing with the mandatory period of six months was negatived by the Court below basing on the Division Bench Judgment of this Court in Re : Jakkula Venkata Ramana Murthy, (1992) 3 Andh LT 381.

3. Mr. K. S. Murthy, the learned Counsel for the petitioner, cited the decisions of this Court in K. Omprakash v. K. Nalini, AIR 1986 Andh Pra 167 and Re, G. V. Chitti Abbai and G. Padma Lakshmi, (1998) 5 Andh LT 618 : (AIR 1999 Andh Pra 91), as also the judgment of the Karnataka High Court in Smt. Roopa Reddy v. Prabhakar Reddy, AIR 1994 Kant 12. Insofar as the judgment rendered by a learned single Judge of this Court in Re : G. V. Chitti Abbais case (supra) is concerned, no judgment of this Court was cited before the learned single Judge. In fact, there is yet another judgment of another learned single Judge in Re : M. Sailaja, AIR 1995 Andh Pra 325, in which both the Division Bench judgments in K. Omprakashs case (AIR 1986 Andh Pra 167) (supra) and Jakkula Venkata Ramana Murthys case (1992 (3) Andh LT 381) (supra) have been considered and the learned single Judge has followed the latter Division Bench judgment in Jakkula Venkata Ramana Murthys case (supra) holding that the 6 months wait period contemplated under Section 13-B(2) of the Hindu Marriage Act cannot be waived or relaxed. Before the learned single Judge in Re : G. V. Chitti Abbais case (AIR 1999 Andh Pra 91) (supra) only one judgment was cited i.e. of Delhi High Court in Arvind Sharma v. Dhara Sharma, 1998 (1) CCC 22, in which, again the judgments in K. Omprakashs case (AIR 1986 Andh Pra 167) (supra); Smt. Roopa Reddys case (AIR 1994 Kant 12) (supra) and Dhanjit Vadra v. Smt. Beena Vadra, AIR 1990 Delhi 146, were cited, but not the latter judgments i.e. Division Bench judgment of this Court in Jakkula Venkata Ramana Murthys case (1992 (3) Andh LT 381) (supra), which was again followed by a learned single Judge in Sailajas case (AIR 1995 Andh Pra 325) (supra).

4. In K. Omprakashs case (AIR 1986 Andh Pra 167) (supra), the facts are different than the instant case. In fact, the Division Bench was considering an appeal against rejection of the plea of divorce and during the pendency of the appeal, application was filed under Order VI, Rule 17, C.P.C. to convert the petition for divorce to one under the consent divorce under Sec. 13-B of the Act and what was available for the Division Bench was the point for consideration as to whether 6 months wait is necessary in the appellate Court after spending all that time in the litigation, which was more than 6 months and as the marriage had irretrievably broken down. The facts of the said case did not warrant any adjudication with regard to the power of the trial Court to relax the 6 months wait period and as to whether the said period of 6 months was directory or mandatory. That was correctly pointed out by the latter Division Bench judgment in Jakkula Venkata Ramana Murthys case (1992 (3) Andh LT 381) (supra). The facts situation in Jakkula Venkata Ramana Murthys case (supra) necessitated the adjudication with regard to the power of the trial Court to relax 6 months wait period under Section 13-B(2) of the Act. In the said case, a petition under Section 13-B of the Act was filed praying for a decree of divorce by mutual consent on 20-7-1992 and the said petition was posted to 20-1-1993 i.e. after 6 months as contemplated under Sec. 13-B(2) of the Act. But, an interlocutory application was filed seeking advancement of the case from 20-1-1993 to 22-7-1993 and on rejection of the said application, C.M.A. was filed and then the pertinent question was as to whether the provision of 6 months was mandatory or directory and distinguishing the earlier Division Bench judgment in K. Omprakashs case (AIR 1986 Andh Pra 167) (supra), it was held that the trial Court has no power to alter the statutory time-limit indicated in Section 13-B(2) of the Act, as the said time has been fixed by the Parliament to enable the parties to have introspection before finally opting for snapping the marital tie. The said legal principle enunciated by the Division Bench in Jakkula Venkata Ramana Murthys case (1992 (3) Andh LT 381) (supra) has been followed by the learned single Judge in Re : M. Sailajas case (AIR 1995 Andh Pra 325) (supra). These two judgments were never brought to the notice of the learned single Judge later disposing of G. V. Chitti Abbais case (AIR 1999 Andh Pra 91) (supra). As such, we cannot uphold the view of the learned single Judge in G. V. Chitti Babus case (supra) that the provision contained under Sec. 13-B(2) of the Act to wait for 6 months is directory and not mandatory. We are also in respectful disagreement with the similar view taken by the Karnataka High Court in Smt. Roopa Reddys case (AIR 1994 Kant 12) (supra), wherein it was held that the provision of 6 months time wait under Section 13-B(2) was held to be directory and not mandatory. It is pertinent to mention that even in Smt. Roopa Reddys case (AIR 1994 Kant 12) (supra), the earlier judgment of K. Omprakashs case (AIR 1986 Andh Pra 167) (supra) was cited, but the fact that it was distinguished by a later Division Bench of this Court in Jakkula Venkata Ramana Murthys case (1992 (3) Andh LT 381) (supra) was not brought to the notice of the Court.

5. Section 13-B was incorporated in Hindu Marriage Act, 1955 by 1976 amendment. Before the said amendment, obtaining of divorce was very strict and only on proof of the grounds enumerated therein like desertion, cruelty etc., the divorce could be granted and on no other ground. On a slightest doubt of collusion between the parties, the Court was empowered to reject the plea of divorce. On passage of time, the Parliament has taken note of the hardship in the cases where the grounds stated could not be proved, yet the parties will stay separately making the very marriage institution counter-productive. As such, amendment was brought forth facilitating the decree by mutual consent by satisfying the Court that the marriage is irretrievably broken because of incompatibility. Here also, the Court should be satisfied that there is no collusion between the parties and the decree by mutual consent was not being sought for as a matter of course. The timeframe of 6 months wait has been set in the provision under Sec. 13-B(2) with a definite purpose and object of giving time to the parties for introspection and reconciliation. Within that 6 months wait period, it may be possible for the parties to reunite by setting aside their differences and even the elders, relatives and friends can also try for rapprochement; otherwise there was no purpose or object for the Parliament to fix up the 6 months time wait. That purpose and object stares at us so clearly by the language expressed in Section 13-B(2) of the Act robbing away the right of the Court from considering the petition earlier than 6 months or later than 18 months after its date of presentation and subject to further conditions of the petition not being withdrawn in the meantime and the Court being satisfied that the averments in the petition are true. Had the Parliament intended to create an exception to this compulsory time wait of 6 months, it could have done so as is provided in Proviso to Section 14 of the Act traceable to some of the clauses provided for obtaining involuntary divorce decree under Sections 13(1) and 13(1-A) of the Act. No such relaxation or exception can be read into Section 13-B of the Act in which obtaining of divorce decree by mutual consent is fettered with three pre-conditions, viz., (i) that the marriage has been solemnized in accordance with the Hindu Marriage Act, (ii) that for one year before the presentation of the petition for divorce by mutual consent, the parties had been living separately, and (iii) that even after compulsory wait of 6 months, the parties could not enter any reconciliation to reunite and opted for the grant of divorce by mutual consent. When the law prescribes the said manner for exercising jurisdiction and confers powers for that purpose, it has to be exercised in the same manner. In fact, the judgments pronounced by the Apex Court in Smt Sureshta Devi v. Om Prakash., AIR 1992 SC 1904 and Ashok Hurra v. Rupa Bipin Zaveri., AIR 1997 SC 1266, clearly indicate that the time wait of 6 months is compulsory as the said time-frame has got a definite purpose i.e. enabling the parties to reunite. It is apt to extract the relevant passage from Sureshta Devis case (AIR 1992 SC 1904) (supra), which reads (Para 13) :

"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 interregnum 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."

In the latest Supreme Court judgment in Ashok Hurras case (AIR 1997 SC 1266) (supra), this view taken in Sureshta Devis case (AIR 1992 SC 1904) (supra) relating to the wait period has not been dissented to, but was of the view that beyond 6 months wait period, a spouse may not be entitled to resile from the consent given earlier. But the Apex Court did not adjudicate on that issue and instead proceeded to snap the marital ties invoking the extraordinary power under Art. 142 of the Constitution. The result is that the legal principles enunciated by the Apex Court in Sureshta Devis case (AIR 1992 SC 1904) (supra) still hold the field.

6. In view of what is stated supra, we hold that the minimum of 6 months wait period from the date of presentation of the petition for snapping the marital ties between the parties by mutual consent under Sec. 13-B(2) of the Act is mandatory and not directory and that the Court has no power to relax the said compulsory time wait of 6 months. Now, that the statutory period of 6 months is also over, there is no embargo for the lower Court to consider the motion in accordance with sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955.

In the result, the Civil Revision Petition is dismissed, but, in the circumstances, with no order as to costs.

Revision dismissed.