Citation Codes

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Case Number

W.P No. 431 of 2006

Attorney(S)

A.K Bhangde
Anup Parihar, AGP

Judges

B.P Dharmadhikari, J.

Acts

provisions of section 13-B(2) of Hindu Marriage Act
section 13(1)(ia) of Hindu Marriage Act, 1955,
SECTION 13 B HINDU MARRIAGE ACT 1955
SECTION 125 CRIMINAL PROCEDURE CODE
section 13-B(2) of Hindu Marriage Act
section 498 of Indian Penal Code

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioners before this Court are husband and wife who challenged the order dated 13-01-2006 passed by the Principal Judge, Family Court, Nagpur. That order rejected the petitioners' request to waive the six-month waiting period prescribed by section 13-B of the Hindu Marriage Act, 1955, and to consider their application for divorce by mutual consent immediately.

Relevant factual details recorded in the opinion include:

The marriage of the petitioners took place on 07-12-2004 at Arya Samaj, Hansapuri, Nagpur, according to Hindu rites.
Petitioner No.1 (wife) was stated to be 24 years old and Petitioner No.2 (husband) 28 years old.
The parties lived together purportedly for about three days and have been living separately since 10-12-2004.
An application for divorce by mutual consent under section 13-B was filed on 23-12-2005 (immediately after the expiry of one year since the marriage).
In the application it was stated that the wife's parents intended to solemnize her marriage on 15-02-2006 and the husband had no objection to that marriage; it was also stated there was no possibility of revival of the marriage.

Procedurally, the Family Court heard arguments, considered authorities and rejected the petitioners' request to waive the six-month waiting period; the petitioners then approached this Court by writ petition challenging that order. The writ petition was heard and ultimately dismissed by this Court.

Legal Issues Presented

Whether the Family Court erred in concluding that it has no jurisdiction to entertain and grant a petition for divorce by mutual consent under section 13-B of the Hindu Marriage Act, 1955, before the expiry of the statutory six-month waiting period (i.e., whether the six-month period can be waived or reduced in the present facts).
Whether the factual circumstances of the petitioners (married for a short period, living apart since three days after marriage, an imminent remarriage of the wife, and claimed irretrievable breakdown) justify waiver or reduction of the statutory waiting period under section 13-B(2).

Arguments of the Parties

Petitioners' Arguments (Advocate: Shri Bhangde)

The Family Court acted on a misconceived notion that it had no jurisdiction to decide a consent divorce application before the expiry of the six-month statutory period.
Reliance was placed on multiple judgments (including Dhanjit Vadra v. Beena Vadra, In Re: Grandhi Venkata Chitti Abbai, Anita Sharma & Harish Kumar Sharma, Anjana Kishore v. Puneet Kishore, Shashi Garg (Smt) v. Arun Garg, and Dineshkumar Shukla v. Smt. Neeta) to show circumstances in which a waiting period was dealt with or considered.
Given that the parties lived together only for three days and have been separated for over a year, the marriage is said to be irretrievably broken and there is no point in requiring an additional six-month wait.
The six-month period is argued to be directory and capable of being waived in appropriate circumstances.
Because the wife was to be remarried imminently (parents intended a marriage on 15-02-2006) and the husband had no objection, the waiting period should be waived and divorce granted immediately.

Respondent's Arguments (Advocate/AGP: Shri Parihar)

The Family Court correctly applied its mind and the observations it made about the authorities relied upon by petitioners are relevant: in the cited cases the request for waiver was considered after the expiry of six months.
The present marriage was a love marriage conducted at Arya Samaj, and the parties lived together only for three days; these facts do not justify waiver of the statutory period.
This Court should not interfere with the Family Court's factual and legal conclusion in writ jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Anita Sharma & Harish Kumar Sharma v. Nil, AIR 2005 Delhi 365	Laid down guidelines/tests to ascertain that a marriage has irretrievably broken and identified factors for granting a waiver of the waiting period (maturity, absence of coercion, duration, absence of possibility of reconciliation, lack of frivolity, age, deleterious effect on prospects of remarriage, etc.).	The Family Court considered this judgment at length and reproduced its tests; this Court noted those tests and observed they are meant to examine whether parties have taken the decision with full thought and deep consideration. The Family Court applied those tests and nonetheless refused to waive the waiting period in the present facts.
Smt. Sureshtra Devi v. Om Prakash, (1991) 2 SCC 25 : AIR 1992 SC 1904	Clarified that under section 13-B(2) a joint motion may be made not earlier than six months and that the waiting period is intended to give time to reflect and to prevent coercion, fraud or undue influence; filing a petition does not authorize a decree during the interregnum.	The Family Court relied upon this apex judgment to hold that it must wait for the statutory period of six months and cannot adjudicate the petition before that period; this Court upheld that conclusion as binding and decisive.
Dhanjit Vadra v. Beena Vadra, AIR 1990 Delhi 146	Used by petitioners to support waiver/reduction arguments; the judgment arose in the context of long-pending proceedings (case pending since 1985) and a subsequent joint request to treat petition as one by mutual consent.	This Court examined the factual background of the case (long pendency and earlier steps) and observed it is distinguishable from the present facts; Family Court's appreciation of that distinction was accepted by this Court.
In Re: Grandhi Venkata Chitti Abbai, AIR 1999 AP 91	Relied upon for circumstances where earlier litigation (maintenance proceedings under section 125 CrPC and criminal proceedings under section 498 IPC) and community/elders' attempts at compromise existed.	The Court observed these prior proceedings and attempts at compromise were material to the decision in that case; the Family Court correctly appreciated these contextual facts and this Court accepted that appreciation.
Anjana Kishore v. Puneet Kishore, (2002) 10 SCC 194	Illustrates matter was considered by the Supreme Court after more than six months from institution of proceedings (context of settlement terms and timing).	Cited to demonstrate that the case reached the Court after the statutory waiting period; Family Court and this Court treated it as not supporting early waiver in the present case.
Shashi Garg (Smt) v. Arun Garg, (1997) 7 SCC 565	An authority considered in the context of timing—matters taken up after the six-month period had expired in the reported instance.	The Court noted that in that instance the Apex Court considered the matter after six months; this fact led the Family Court (and this Court) to treat it as inapposite to justify immediate waiver here.
Dineshkumar Shukla v. Smt. Neeta, II (2005) DMC 51 (MP High Court)	Held that the waiting period of six months can be reduced in divorce by mutual consent proceedings when efforts for conciliation have failed.	The Court observed that although that decision recognizes the possibility of bringing down the waiting period, the controversy there was considered after the expiry of six months; the Family Court's reliance and this Court's consideration noted that factual prerequisites and timing differed from the present case.
Anita Sabharwal v. Anil Sabharwal (reported reference in the opinion)	Another instance where the dispute before the Apex Court was considered after the waiting period had expired and where settlement terms (monetary and maintenance) were recorded.	Used to illustrate that the cases relied upon by petitioners were in general considered after the expiry of the statutory period; the Family Court's treatment of this precedent was accepted by this Court.
Satish Garg v. Arun Garg (referenced)	Illustrates a case where parties had reached a point of no return and the Apex Court pronounced judgment after the six-month period.	The Court used this to highlight that the relevant precedents involved consideration after the statutory waiting period, undermining petitioners' contention that immediate waiver was supported by these authorities.

Court's Reasoning and Analysis

(Step-by-step account of the Court's analytical process as stated in the opinion.)

The Court recorded the uncontroverted facts: the parties were married on 07-12-2004, lived together for about three days, separated from 10-12-2004, and filed an application under section 13-B on 23-12-2005 seeking immediate consideration by waiving the six-month statutory period.
The Family Court had heard arguments at length and examined authorities cited by the petitioners, including a detailed consideration of the Delhi High Court judgment in Anita Sharma & Harish Kumar Sharma and the apex judgment in Smt. Sureshtra Devi v. Om Prakash.
The Court emphasized the principle from Sureshtra Devi that subsection (2) of section 13-B creates an interregnum (from six to eighteen months) intended to give parties opportunity to reflect, seek advice, and protect against coercion, fraud or undue influence; filing a petition does not entitle the Court to grant a divorce decree during this waiting period.
With regard to the authorities relied upon by the petitioners, this Court reviewed their factual matrices and timing. It found that in most cited cases (including Dhanjit Vadra, Grandhi, Anjana Kishore, Anita Sabharwal, Satish Garg, Shashi/Arun Garg, Dineshkumar Shukla) the courts had considered the matter after the statutory period had expired or in the context of prior litigation or conciliatory attempts. Thus, those precedents did not establish that immediate waiver was appropriate in the present facts.
The Court noted that Anita Sharma lays down tests to assess irretrievable breakdown, maturity of parties and other indicia; the Family Court had applied those tests but still concluded the waiting period should not be waived in this case.
After examining the factual circumstances of this case and the precedents, the Court found no reason to take a different view from the Family Court that the statutory waiting period of six months could not be reduced or waived in the present facts.
On this basis the Court concluded that the petitioners must wait the statutorily prescribed six-month period and that no exceptional circumstance warranting reduction or waiver of that period was made out.

Holding and Implications

Holding: Writ petition dismissed. The Court affirmed the Family Court's order refusing to waive the six-month waiting period under section 13-B of the Hindu Marriage Act, 1955, and refused to consider the petition for divorce by mutual consent before expiry of that period.

Implications:

Direct effect on the parties: The petitioners are required to wait for the statutory six-month period before a joint motion under section 13-B(2) can be entertained; the Court refused immediate relief and the petitioners' request for waiver was denied.
Costs: The opinion records that there shall be no order as to costs.
Precedential effect: The Court applied and reaffirmed the principle in Smt. Sureshtra Devi that the statutory waiting period is intended to provide an opportunity for reflection and to guard against coercion/fraud; the Court did not indicate creation of any new legal principle beyond applying existing authority to the facts. In short, no new precedent was laid down; the decision enforces the existing approach that waiver of the six-month waiting period is exceptional and must be supported by appropriate factual circumstances.

Petition dismissed.

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Savitri v. Principal Judge, Family Court, Nagpur

1. The petitioners before this Court are husband and wife and they are challenging the order dated 13-1-2006 passed by the Principal Judge, Family Court, Nagpur, rejecting their request to waive prescribed period of six months under section 13-B of Hindu Marriage Act, 1955, and to consider their application for grant of divorce by mutual consent immediately.

2. The petitioner No. 1-wife is stated to be 24 years old while petitioner No. 2 - husband is stated to be 28 years of old. Both of them performed their marriage at Arya Samaj, Hansapuri at Nagpur on 7-12-2004 according to Hindu religion and ceremonies. It is stated that said marriage is love marriage. The parties state that they are living separately since 10-12-2004 when they decided to live separately. It is the contention that in recent past they realised that their likings, tastes of life, temperaments, ideas, ideologies, thinking, attitudes, aptitudes, intellectual reactions, capacities, feelings, moods, habits, nature and life are so different from each other that it would not be possible for them to hit it off together in future. It is to be noted that parties have lived together hardly for three days. The details where and how they lived together are not on record. Immediately after expiry of one year i.e on 23-12-2005, application for divorce by mutual consent under section 13-B of Hindu Marriage Act, 1955, came to be filed and a request was made to the Family Court to exempt them from requirement of waiting for prescribed period. In the said application, which is moved on 23-12-2005, it is stated that parents of petitioner No. 1 - wife have Page: 401decided to solemnized her marriage on 15-2-2006 and petitioner No. 2 - husband has also no objection for said marriage. It is further stated that there is no possibility of revival of marriage.

3. The Family Court heard the arguments at length and thereafter appreciated all cases cited before it by the advocate appearing for the husband and wife. It examined the facts in the light of judgment of Delhi High Court in the case of Anita Sharma & Harish Kumar Sharma… v. Nil…., reported at AIR 2005 Delhi 365 and also found that final word on the issue is judgment of the Hon'ble Apex Court in the case of Smt Sureshta Devi v. Om Prakash., reported at 1991 Mh. L.J (SC) 324 : (1991) 2 SCC 25 : AIR 1992 SC 1904. It held that the Court will have to wait for period of six months and it has no jurisdiction to try and decide the petition before the statutory period and it therefore rejected the application moved by the parties in this respect.

4. I have heard Shri Bhangde, learned counsel for the petitioners and Shri Parihar, learned AGP for the respondent.

5. Shri Bhangde, learned counsel for the petitioners has contended that the Family Court has acted under the misconceived notion that it has no jurisdiction to try application for divorce by mutual consent before the expiry of prescribed period of six months. He places reliance upon the judgment of the Delhi High Court in the case of Dhanjit Vadra v. Beena Vadra, reported at AIR 1990 Delhi 146, In Re: Grandhi Venkata Chitti Abbai, reported at AIR 1999 AP 91, in Anita Sharma & Harish Kumar Sharma… v. Nil…., reported at AIR 2005 Delhi 365, in Anjana Kishore v. Puneet Kishore, reported at (2002) 10 SCC 194, in Shashi Garg (Smt) v. Arun Garg, reported at (1997) 7 SCC 565 and in Dineshkumar Shukla…Applicant; v. Smt. Neeta…., reported at II (2005) DMC 51 of Division Bench of Madhya Pradesh High Court to substantiate his contention. He contends that when the parties have lived only for three days together and are not living together since last more than one year, it is obvious that marriage has been irretrievably broken and hence there is no point in punishing the parties by asking them to wait for further period of six months. He contends that said period is only directory and it can be waived in appropriate circumstances. According to him, when the petitioner No. 1 - wife is already getting married, the said period needs to be waived and the request for divorce by mutual consent needs to be granted immediately.

6. As against this, Shri Parihar, learned AGP has invited attention to express observations made by the Family Court on the judgments on which the petitioners have placed reliance. He states that in all those cases, the request for divorce by mutual consent has been considered after expiry of period of six months. He further contends that here, the marriage is love marriage, performed in Arya Samaj and parties have hardly lived together for three days and as such, the said period of six months cannot be waived. He contends that Family Court has applied its mind correctly in the facts and circumstances of the case and this Court should not interfere in the matter in writ jurisdiction.

7. A perusal of judgment between Dhanjit Vadra v. Beena Vadra, (supra) of Delhi High Court reveals that the said case was pending in Court since 1985. The parties were married on 12-3-1982, a child was born to them and they were living separately from 5-6-1984. The husband filed petition for grant of divorce under section 13(1)(ia) of Hindu Marriage Act, 1955, on 11-2-1985. Efforts were made during the pendency of these proceedings to bring about the conciliation Page: 402and evidence was recorded in January, 1988, March, 1989 and May 1989. Thereafter, on 5-9-1989, parties jointly requested to treat the petition for divorce as petition for grant of divorce by mutual consent. Thus, the application of mind by learned Single Judge of Delhi High Court needs to be appreciated in this background. In another case In Re: Grandhi Venkata Chitti Abbai (supra) of Andhra Pradesh High Court, again it appears that there was earlier litigation in the shape of proceedings under section 125 of Criminal Procedure Code filed in the year 1995 - a proceeding for grant of maintenance. The wife also had filed criminal proceedings under section 498 of Indian Penal Code in 1996. The village elders as well as well wishers of both the parties had tried to effect compromise under which sufficient safeguards were provided for maintenance of wife. Thus, the said judgment has been correctly appreciated by the learned Family Court in para 6 of its order. The judgment of Hon'ble Apex Court in the case between Anjana Kishore v. Puneet Kishore (supra) reveals that the case was instituted for divorce in the year 2000 and the terms of compromise reveal that total amount of Rs. Seven lakhs was given to wife for settlement. The Hon'ble Apex Court has considered the controversy on 3-8-2001 i.e more than six months after the proceedings were initiated. In another judgment of the Hon'ble Apex Court between Anita Sabharwal v. Anil Sabharwal. (supra), a divorce case was initiated in the year 1994 and again an amount of Rs. Seven lakh was agreed to be given to wife and recurring maintenance provision was made for education of children. The Hon'ble Apex Court was approached in 1996 and the judgment is delivered on 9-12-1996. Thus, again the waiting period of six months had already expired. In another judgment of the Hon'ble Apex Court in the case between Satish Garg v. Arun Garg (supra), divorce case was filed by the husband in the year 1996 and the Hon'ble Apex Court was approached in 1996. The Hon'ble Apex Court found that the parties have reached point of no return and the judgment of the Hon'ble Apex Court was pronounced on 18-9-1997. It is thus again after expiry of six months from the date of institution of proceedings before the Competent Court. The Division Bench judgment of Madhya Pradesh High Court between Dineshkumar Shukla…Applicant; v. Smt. Neeta…. (supra) reveals that the marriage was solemnized in the year 1987 and the parties had one issue. Husband filed proceedings on 8-1-1996 under Section 13(1) for seeking divorce on the ground of cruelty and the judgment of Hon'ble High Court is dated 4-1-2005. The Hon'ble High Court has held that waiting period of six months can be brought down in such proceedings for divorce by mutual consent when all efforts for conciliation have failed. It is again apparent that the controversy has been considered after the expiry of period of six months.

8. The learned counsel for the petitioner has also relied upon the judgment of Delhi High Court in the case of Anita Sharma & Harish Kumar Sharma… v. Nil…., reported at AIR 2005 Delhi 365. The said judgment is considered at length by the Family Court in paragraph 7 and I find it convenient to reproduce said paragraph 7 here.

“The learned counsel for the petitioners have also relied upon AIR 2005 DELHI 365, Anita Sharma & Harish Kumar Sharma… v. Nil….. The Hon'ble High Court has laid down certain guidelines to ascertain that the marriage between the parties to really dead and has irretrievably broken. It is further observed by the Hon'ble High Court that the waiver must be granted by Page: 403the Court if the tests are satisfied and it should not be granted merely because for asking by the parties. The tests are the maturity and the comprehension of the spouses absence of coercion or undue influence, the duration of the marriage sought to be dissolved, absence of possibility of any reconciliation lack of frivolity, lack of misrepresentation, the age of the spouses and the deleterious effect of continuance of sterile marriage on the prospects of re-marriage of the parties. In the present case the marriage between the parties is a love marriage. After the marriage they lived together only for three days and thereafter they are living separately. They have filed present petition immediately after completion of one year of their separation. In my opinion, the tests as stated in the ruling relied upon by the petitioners are mentioned with a view to examine that the parties have taken decision to dissolve the marriage with full thought and deep consideration. It is apparent that the petitioners have performed their marriage on their own without consulting their parents and now they want to dissolve their marriage by mutual consent. It is submitted by the learned counsel for the petitioners that their parents have also endorsed their decision and the marriage of petitioner No. 1 is likely to be settled. The period of six months under section 13-B(2) of Hindu Marriage Act is provided with a view to give an opportunity to the parties to reconsider their decision of divorce by mutual consent. Under the Hindu Law the marriage is a sacrament and not mere contract. The law has always discouraged such hasty dissolution of marriage. The provisions of section 13-B(2) of Hindu Marriage Act is meant only with this object.”

9. The Family Court has also made reference to the judgment of the Hon'ble Apex Court in the case between Smt. Sureshtra Devi v. Om Prakash, (supra) and para 10 and 13 of said judgment are important. The said paragraphs are reproduced below:

“Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or under influence.”

“From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorize 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. 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 be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course.”

10. It will thus be seen that the Family Court has considered all the aspects having bearing on the aspect and has found that the period of six months cannot be brought down in the present case. It has also concluded that such application Page: 404cannot be considered before expiry of statutory period of six months. In view of findings reached by the Family Court in para 7 of its order, with which I find no reason to differ. I am not inclined to take different view of the matter. The sequence of events above necessitate that the petitioners should wait for a period of six months.

11. No case is made out for bringing down said period in the facts and circumstances of this case. Writ Petition is, therefore, dismissed. There shall be no order as to costs.

Petition dismissed.

Savitri v. Principal Judge, Family Court, Nagpur

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (Advocate: Shri Bhangde)

Respondent's Arguments (Advocate/AGP: Shri Parihar)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Savitri v. Principal Judge, Family Court, Nagpur

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