IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 431 OF 2006
Smt. Savitri w/o Sudesh Subba,
2. Shri Sudesh s/o Nainasing Subba,
Versus
The Principal Judge,
Family Court,
Nagpur.
CORAM : B.P. DHARMADHIKARI, J.
DATE OF PRONOUNCING THE JUDGMENT: FEBRUARY 28, 2006.
Citation;
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
realised
temperaments,
aptitudes,
that
their
likings,
tastes
of
life,
they
3
ideas, ideologies, thinking,
intellectual reactions, capacities,
attitudes,
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 decided 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
3.
marriage.
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 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.
Sureshtra Devi vs. Om Prakash, reported at 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
5.
respondent.
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
ig
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 vs. Beena Vadra, reported at AIR 1990
Delhi 146, In Re : Grandhi Venkata Chitti Abbai, reported
at AIR 1999 AP 91, in Anita Sharma v. Nil, reported at
AIR 2005 Delhi 365, in Anjana Kishore vs. Puneet Kishore,
reported at (2002) 10 SCC 194, in Shashi Garg vs. Arun
Garg, reported at (1997) 7 SCC 565 and in Dineshkumar
Shukla vs. 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
and
can
be
waived
in
appropriate
According to him, when the petitioner
circumstances.
it
directory
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
7.
interfere in the matter in writ jurisdiction.
A perusal of judgment between
Dhanjit Vadra
vs. 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 and 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
Thus, the application of mind by
by mutual consent.
8
learned Single Judge of Delhi High Court needs to be
appreciated in this background. In another case in Re vs.
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 vs. Puneet Kishore (supra)
reveals that the case was instituted for divorce in the year
2000 and the terms of compromise reveal that total
settlement.
amount of Rs. Seven lakhs was given to wife for
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 vs. 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
vs. 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 vs. Neeta
(supra) reveals that the marriage was solemnized in the
ig
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 vs. 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 and another Vs.
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 the 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 mis-representation, 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
lived
together
After the marriage they
only
for
is a love marriage.
three
days
thereafter they are living separately.
and
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
marriage
their
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.
always
discouraged
dissolution of marriage.
The
such hasty
law has
The provisions of
Section 13-B(2) of Hindu Marriage Act is
The Family Court has also made reference to the
9.
meant only with this object.”
judgment of the Hon'ble Apex Court in the case between
Smt. Sureshtra Devi vs. 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
and friends.
on their move and seek advice from relations
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 cannot be considered before expiry
In view of findings
of statutory period of six months.
15
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
No case is made out for bringing down said
11.
six months.
period in the facts and circumstances of this case. Writ
Petition is, therefore, dismissed. There shall be no order
as to costs.
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