This appeal is directed against the judgment and decree dated 04.04.2000 passed by IXth Additional District Judge, INDORE, in Hindu Marriage Case No. 163/95, whereby it dismissed the petition filed by the appellant/husband for grant of decree of divorce against the Respondent/wife on the grounds mentioned under Section 13 of the Hindu Marriage Act, 1955 (for short “the act of 1955”).
2. The brief facts of the case are that the parties are Hindus and they are husband and wife. Their marriage was solemnized at INDORE in 1990 as per the Hindu Customs and Religion. Out of the said wedlock two daughters namely Trishala and Purvi were born. It is not in dispute before me that both are having serious differences in their relations and both are residing separately since 1995. In the meantime relatives, friends and members of the community tried for their reconciliation but it could not be possible due to the serious differences between them. It is also not in dispute before me that this Court also tried for reconciliation between them before passing this order but it could not be possible looking to the serious differences between them. It is also not in dispute that both the daughters are residing with the Respondent/mother and now looking to their conduct, behavior and differences and in future also it is not possible between them to reside together. On 12.05.1995 appellant/husband filed a petition for divorce on various allegations against the Respondent/wife. The trial Court after enquiry dismissed the petition filed by the husband, against which the husband has filed this appeal.
3. On 31.10.2002 both parties have filed a joint application (I.A. No. 3881/2002) under Section 13-B of the Act of 1955 for grant of divorce by mutual consent. On 11.11.2002 they prayed for filing of affidavits in support of their application and on their request this application was listed for consideration and for recording their statements. Today they have filed affidavits in support of their application and the statements of the parties have been recorded by this Court and on perusal of the statements it is found that the parties are not prepared to live together as husband and wife and they are residing separately since last 7 years and there is no possibility for living together in future also. Therefore, they want dissolution of marriage on consent.
4. I have heard learned counsel for parties and perused the record.
5. It is submitted on behalf of the parties that both are residing separately since 1995. Their differences are very serious. There is no possibility that in future they will reside together. Both have stated in their statement that they want a decree of divorce on the basis of mutual consent. The consent has not been obtained by force, fraud or undue influence and there is also no collusion between them and as per their free will they have given consent for divorce. The appellant/husband has already paid an amount of Rs. 7,50,000-00 by Demand Draft to the wife for the education, marriage and maintenance of their two daughters. The wife has also, agreed to accept the amount willingly and has also, not claimed any amount for her maintenance because she is serving in some private company and earning for her livelihood. Both have stated in their statements that according to settlement between them, both the daughter who are residing with the wife/mother, shall continue to reside with the wife/mother in future also.
6. Looking to the aforesaid statements, it is clear that there is no possibility between the parties to live together and they are entitled for a decree of divorce by mutual consent.
7. Now the sole question before this Court is whether directly an application under Section 13-B of the Hindu Marriage Act, 1955 for divorce by mutual consent can be filed before the appellate Court and even at the appellant stage whether the same can be granted without waiting for the lapse of period of six months as specified under sub-Section (2) of Section 13-B of the Hindu Marriage Act, 1955 and what factors should be considered by the Court while allowing such an application?
8. After Inserting Section 13-B under the Hindu Marriage Act, 1955, now it is possible to dissolve a marriage by consent of the parties and for that it is not necessary that a ground should exist on which a marriage may be dissolved by the Court. Under Section 13-B of the Act of 1955 both the parties can file an application for mutual divorce on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that marriage should be dissolved. As per the provisions of Section 23 of the Act of 1955 when a divorce was sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence and the petition is not presented or prosecuted with the collusion of the Respondent. If all the ingredients of Section 13-B read with Section 23 of the Act of 1955 are proved by the parties, decree for divorce should be granted and at the time of passing a decree, the Court may also consider the question of grant of maintenance and permanent alimony and also for return of articles in possession of spouse and according to this Court if a petition is pending for more than a year or 18 months and if the parties are living separately, then if the Court is satisfied then it is not necessary for the trial Court or for the appellate Court to wait till the period of six months is lapsed, the Court may accept the application for divorce by mutual consent and dissolve the marriage.
9. In the case of Leela Mahadeo Joshi v. Dr. Mahodeo Sitaram Joshi, reported in A.I.R. 1991 Bombay 105, the Division Bench of the Bombay High Court has defined the words “have been living separately” and “not having been able to live together” as under:
“The term “have been living separately” will have to be read in conjunction with “not having been able to live together”. It is undoubtedly clear that if out of economic necessity or for reasons of employment, the spouses have been living separately and conversely, have not been able to live together the Court will have to find out from the averments in the petition or from the oral evidences to whether it is because of a break-down of the matrimonial relations or for any other reason. S.13B presupposes only those cases where cohabitation, which is the essential ingredient of a valid and subsisting marriage, has come to an end because of a total break-down of the matrimonial relationship. Again the Legislature has provided a further safeguard, namely that the period of such separation should be at least one year prior to the date when the petition is presented. Obviously, the reason for prescribing this period is that in cases of estrangement or separation on flimsy or frivolous grounds, the Court would be justified in not passing a decree unless the facts disclose that the breach has not only been serious but such as to have lasted at least for one year. In fact, this period would effectively be extended to at least 18 months or more, having regard to the procedural delay, taking into account the waiting period of six months from the presentation of the petition.
"It is material to note that S. 13-B sub-sec. (2) makes it mandatory on the part of the Court to pass a decree once the above ingredients are satisfied and it is, therefore not open to the Court to refuse to pass a decree in such circumstances. Such refusal would be contrary not only to the provisions of law but the very purpose of the amendment and would frustrate the basic objective of providing an honorable and effective dissolution of marriage in case of matrimonial break-down without having to go through the exercise of an adversary litigation involving allegations against each other. It would be worthwhile for the trial Courts to bear in mind there principles because we have been repeatedly receiving complaints that instead of providing the unfortunate litigants with an effective relief to their problems that the matrimonial Courts have been at times taking up a difficult or technical approach which results in lingering of the litigation, often times through appeals and avoidable difficulties to the parties. Unlike other forms of litigation. The matrimonial Courts constitute a specialised forum which is duty bound to act in consonance with the needs of the hour, namely, to provide quick and efficient justice to parties who have already gone through the trauma of a broken marriage."
10. In the case of Smt Sureshta Devi v. Om Prakash., reported in A.I.R. 1992 S.C. 1904, the apex court had occasion to interprete the expression “living separately” and “have not been able to live together” occurring in Section 13-B of the Hindu Marriage Act, 1955 as under:-
“The “living separately” for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation, of petition, the parties must have been living separately. The expression “living separately”, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude, they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they “have not been able to live together” seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.”
11. In the case of Mihir Narayan Mohanty v. Sadyalaxmi Patnaik, reported in A.I.R 1991 N.O.C. 92 (Orissa), it has been held that even in revision against rejection of an application after amendment, the parties are entitled to file joint application for divorce and the High Court can pass order even earlier than specified time of six months in terms of Section 13-B of the Hindu Marriage Act, 1955.
12. In the case of Dhanjit Vadra v. Smt. Beena Vadra, reported in A.I.R. 1990 Delhi 146, it has been held by the Delhi High Court that the requirement of motion within time specified under sub-Section (2) of Section 13-B is merely a matter of formality and a decree for divorce by mutual consent can be granted without waiting for the lapse of period of six months specified under subsection (2) of Section 13-B if the Court is satisfied in the case that the requirement, of sub-Section (1) of Section 13-B is fulfilled. The learned Single Judge of the Delhi High Court after examining various-decisions of different High Court has held that the time specified in sub-Section (2) can be waived if the Court is satisfied that the parties have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved as envisaged by sub- Section (1) of Section 13-B of the Act.
13. This Court also in the case of Nayan Kumar v. Smt. Karuna, reported in (1999) D.M.C. 769, has held that when reconciliation is not possible, and parties living separately since last 4-5 years, no marital relation between them during this period, in the interest of justice marriage can be dissolved by a decree of divorce by mutual consent. Again in the case of Smt. Preetha Nair v. Gopkumar reported in (2001) D.M.C. 170, this Court has held that parties living separately since last two years, there is no possibility of reconciliation between them, not necessary to keen the application pending for a period of six months, the application can be allowed and a decree of dissolution of marriage by mutual consent can be granted even prior to the expiry of the period of six months as provided under Section 13-B of the Hindu Marriage Act, 1955. I am also of the same view and fully agree with the earlier pronouncements of this Court.
14. From the aforesaid decisions, it is clear that the trial Court as well as the 'appellate Court at any stage of the proceedings can grant a decree by mutual consent if the conditions laid down in Section 13-B and Section 23 of the Act of 1955 are fulfilled and can grant a decree for divorce in a case where the dispute is pending for more than a year and parties have been living separately for a period of more than one year and they have not been able to live together and have mutually agreed that the marriage should be dissolved and the consent has not been obtained by force, fraud or undue influence. Under Section 13-B of the Act of 1955 application can be filed and accepted by the Court and after an enquiry Court can dissolve the marriage between the parties by mutual consent. There is nothing in Section 13-B of the Act of 1955 to indicate that the parties seeking divorce by mutual consent are required to prove anything in addition to that laid down under Section 13-B of the Act of 1955. Therefore, this Court is fully competent to accept the application filed by the parties for divorce by mutual consent under Section 13-B of the Act of 1955.
15. Consequently the application (I.A. No. 3881/2002) filed on behalf of the parties under Section 13-B of the Act of 1§55 for decree of dissolution of marriage by mutual consent is allowed and in the result this appeal is allowed and the impugned judgment and decree passed by the trial Court is set-aside and instead decree for dissolution of marriage by consent is passed. As regards the question of grant of permanent alimony and maintenance of the wife and children, the Respondent/wife has already relinquished her right and has mutually agreed and has accepted the amount before this Court through Demand Draft. Parties are directed to bear their own costs. A decree be drawn up accordingly. Record be returned.