Madras HC: No Petition for Divorce to be presented within one year of marriage

Hindu Marriage Act, 1955 (25 of 1955), Section 14 – Petition for Divorce – No Petition for Divorce to be 

presented within one year of marriage – Condition prescribing time limit for filing Divorce Petition is mandatory or 

directory – Wife filed Petition for divorce within one year of marriage without seeking leave of Court – Husband 

objected for maintainability of Petition – Subsequently wife filed Application seeking expost facto leave of Court 

under Act – Family Court allowed Leave Application filed by wife – Revision – Held, seeking of leave of Court within 

one year from date of marriage to file Petition for divorce is directory and not mandatory – Law laid down in 

Indumanthi v. Krishnamurthy, 1999 (1) CTC 210 was followed and different view taken by Division Bench Karnataka 

High Court is Sharma H. Kasinath v. Shoba, AIR 2010 Kar. 168 distinguished.

Hindu Marriage Act, 1955 (25 of 1955), Section 14 – Time limit prescribed for filing Petition for Divorce 

within one year from date of marriage – Mandatory vis-à-vis directory – Act did not contain any provision for 

consequences of non-compliance of time limit prescribed under Act – Provision fixing time limit cannot be 

construed as mandatory and it is directory in nature.

Interpretation of Statutes – Legislative Intent – Whether particular provision of law is mandatory or 

directory – Test to be applied – Legislature not incorporated any provision in Act imposing consequences of non-

compliance of particular mandate of Act – Mere negative language employed in statute would not qualify provision 

as mandatory in nature.

Practice and Procedure – Hindu Marriage Act, 1955 (25 of 1955), Section 14 – No Petition for Divorce should 

be entertained within one year of marriage without Application seeking leave of Court explaining exceptional 

hardship to parties – Direction issued to all Subordinate Courts in State for strict compliances of time limit 

prescribed under section 14 of Act – Petition for Divorce filed within one year of marriage should be returned

without numbering unless leave is obtained.1

Madras High Court

G.Ganesh Babu vs Unknown on 20 November, 2012

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Citation;2013 (2) CTC 320

4. The petitioner herein namely G.Ganesh Babu and the respondent herein namely A.P.Arthi, are referred to hereunder as husband and wife respectively.

5. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these Civil Revision Petitions, would run thus: (i) The wife filed the H.M.O.P.No.82 of 2011, during the month of June' 2011, so to say, within a period of one year from the date of marriage, invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking the following reliefs:

"(a) granting a decree of divorce, dissolving the marriage solemnized between the Petitioner and Respondent on 18.11.2010; (b) directing the Respondent to pay the costs of this Petition;" however, without filing an application to obtain the leave citing the exceptional circumstances.

(ii) The husband after entering appearance, filed the application in I.A.No.184 of 2011 for rejection of the H.M.O.P.No.82 of 2011 on the main ground that it was presented within one year from the date of marriage and that too, without any application to obtain leave citing exceptional circumstances. The counter affidavit was filed by the husband.

(iii) Whereupon I.A.No.26 of 2012 was filed by the wife seeking virtually ex post facto leave under Section 14(1) of the Hindu Marriage Act, 1955.

(iv) The lower Court heard both the applications and passed a common order allowing the application filed by the wife and dismissing the application filed by the husband.

6. Being aggrieved by and dissatisfied with the same, the husband preferred these two Civil Revision Petitions challenging and impugning the orders passed by the lower Court.

7. The nutshell facts absolutely necessary for the disposal of these two Civil Revision Petitions would run thus:

The petitioner and the respondent got married as per Hindu rites and customs on 18.11.2010 at Aruppukottai. Subsequently, the wife during June' 2011, so to say, within one year, filed the petition seeking divorce.

8. The learned Counsel for the husband would put forth and set forth his arguments, the warp and woof of the same, would run thus: Obtaining the leave of the Court is sine quo non for filing the H.M.O.P., for divorce within one year and it is mandatory and it cannot be simply ignored as directory. The object of Section 14 of the Hindu Marriage Act, 1955, was not taken into consideration by the lower Court. If this sort of practice is allowed, then the sanctity attached to the marriages, would be set at naught. Over and above that, the reasons found stated for obtaining the said ex post facto leave is frivolous and there is nothing exceptional in it. The dowry demand is the pith and marrow of the alleged exceptional circumstances found set out in the affidavit accompanying the petition filed by the wife. Accordingly, the learned Counsel for the husband citing various precedents, would pray for allowing the I.A.No.184 of 2011 and for dismissal of H.M.O.P.No.82 of 2011.

9. Whereas in a bid to mince meat and torpedo and pulverise the arguments as put forth on the side of the husband, the learned Counsel for the wife, would pyramid his arguments, the pith and marrow of them would run thus: The entire reading of Section 14 of the Hindu Marriage Act, 1955, would connote and denote, project and portray that the obtention of such leave was not mandatory. So far this case is concerned, it is not that wilfully the H.M.O.P.No.82 of 2011 was filed within one year without obtaining leave and unwittingly alone, the petition for divorce was filed without filing the application under Section 14 of the Hindu Marriage Act, 1955, narrating the exceptional circumstances. As such, the lower Court taking into consideration the pro et contra, thought that it would be a mere waste of time to reject the H.M.O.P., and thereby paving the way for the wife to file a fresh petition for divorce on the same grounds.

10. The learned Counsel for the wife also cited various decisions in support of his arguments.

11. The points for consideration are:

(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date of marriage? (ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?

Point Nos.(i) and (ii)

12. At the outset itself, I would like to fumigate my mind with the decisions cited by both sides.

13. The learned Counsel for the husband placed reliance on the following decisions:

(i) Swamidoss Joseph v. Miss Edward reported in A.I.R. 1955 MADRAS 341. (ii) Vinod v. Manju reported in AIR 1982 DELHI 592. (iii) Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC).

(iv) Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.

14. The learned Counsel for the wife relied on the following precedents: (i) Rabindra Nath Mukherjee v. ITI Mukherjee alias Chatterjee reported in CDJ 1991 Cal HC 017.

(ii) Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435. (iii) Manisha Jha (Smt). v. Kunal Kanti Jha reported in CDJ 1998 Cal HC

019.

(iv) Kailash v. Nanhku and others reported in (2005) 4 Supreme Court Cases

480.

(v) R.N.Jadi and Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.

(vi) Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140.

(vii) Gijoosh Gopi, Alappuzha v. S.Sruthi, Alappuzha reported in CDJ 2012 Ker HC 832.

15. A mere running of the eye over the aforesaid precedents would highlight and spotlight the fact that the Division Bench of the Calcutta High Court in Rabindra Nath Mukherjee v. ITI Mukherjee alias Chatterjee reported in CDJ 1991 Cal HC 017, held that seeking leave of the Court within one year to file the petition for divorce from the date of marriage, was only directory and not mandatory and the said decision was followed by the learned Single Judge of this Court in Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435. The aforesaid decision of this Court is also followed by the learned Single Judge of the Calcutta High Court in Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140. However, the Division Bench of the Karnataka High Court took a different view of the matter in Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.

16. As such, the decision of the learned Single Judge of this Court following the decision of the Division Bench of the Calcutta High Court, is very much available before me. Normally, the decisions rendered by the learned Single Judge of this Court should be followed by another learned Single Judge of this Court and the judicial discipline warrants such a procedure.

17. However, the learned Counsel for the husband would place reliance on the decision of the Division Bench of the Karnataka High Court, which is against the decision of the learned Single Judge of this Court as well as the Division Bench of the Calcutta High Court Simply because, a subsequent Division Bench of Karnataka High Court is in variance with the decision of the learned Single Judge of this Court and the Division Bench of the Calcutta High Court, I am not bound to simply follow the said judgment of the Karnataka High Court. The learned Single Judge of this Court placed reliance on the decision of the Division Bench of Calcutta High Court. As such, two Division Benches of two different High Courts have two different views and the learned Single Judge of this Court followed the view of one of such decisions of the Division Benches and wherefore, I am justified in following the decision of the learned Single Judge of this Court and consequently, the decision of the Division Bench of the Calcutta High Court.

18. Over and above that, I would also like to independently furnish my own views in this matter.

19. My mind is redolent and reminiscent of the following legal maxims: (i) "Verba generalia generaliter sunt intelligenda". [General words are to be understood generally.]

(ii) "Verba ita sunt intelligenda, ut res magis valeat quam pereat." [Words are to be so understood that the matter may have effect rather than fail.]

(iii) "Maledicta expositio quae corrumpit textum". [It is a cursed construction that corrupts the text.]

(iv) "Absoluta sententia non indiget expositore". [A simple proposition needs no expositor.]

20. I would also like to extract hereunder the relevant excerpt from the famous treatise "Maxwell on The Interpretation of Statutes [Twelfth Edition by P. St. J. Langan]":

Chapter 5 - Restrictive Construction:

"Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended."

One other excerpt from the same treatise would run thus: "Section 12 (3) of the Matrimonial Causes Act 1950 provided that if the spouse obtaining a decree nisi of divorce did not make an application for it to be made absolute six months after the trial, then the other spouse could make application within a further period of three months and, if the circumstances warranted, obtain a decree absolute. The Court of Appeal held that this did not oust the jurisdiction of the court to substitute a decree of judicial separation for a decree nisi: "had it been the intention of the legislature to revoke this jurisdiction, it would have been done in a clearer way than by inference from the subsection."

21. On a mere running of the eye over those legal maxims and the principles found enshrined in the aforesaid famous treatise, I am of the view that generally, the time limit prescribed in the procedural laws are directory and not mandatory and further that they are only by way of taking a cue that the time limit prescribed under Section 14 of the Hindu Marriage Act, 1955, will not cut at the jurisdiction of the Court. However, the learned Counsel for the husband placing reliance on the decision of the Honourable Apex Court in Smruti Pahariya v. Sanjay Pahariyareported in (2009) 5 MLJ 1203 (SC), would submit that so far Marriage Laws are concerned, time stipulated cannot be taken as directory, but it should be taken as mandatory.

22. I would like to point out that in the aforesaid decision of the Honourable Apex Court relating to Section 13-B of the Hindu Marriage Act, 1955, what was found stressed is that the consent of both sides should be essential at both stages, viz., at the time of jointly presenting the petition and at the time of obtention of divorce after the prescribed period of six months. There could be no quarrel over such a proposition. However, Section 14 of the Hindu Marriage Act, 1955, is on a different footing.

23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:

"14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:

Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year."

24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.

25. At this juncture, I would like to recollect the following decisions: (i) Kailash v. Nanhkureported in 2005 (3) CTC 355. (ii) Rani Kusum v. Kanchan Devi reported in (2005) 6 Supreme Court Cases

705.

(iii) Salem Advocate Bar Association v. Union of India reported in (2005) 6 Supreme Court Cases 344.

(iv) R.N.Jadi & Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.

(v) Zolba v. Keshao and others reported in (2008) 11 Supreme Court Cases

769.

26. The pith and marrow, the gist and kernel of the aforesaid precedents is that whenever any condition is stipulated in law in negative language, then that itself is not sufficient to hold that the law contemplated the said provision as mandatory, but the consequences of such non-adhering to the time limit also should be found spelt out in the statutory provision. Under Order VIII Rule 1 of the Code of Civil Procedure, even though in negative language, the provisions are found spelt out, the consequences were not found spelt out. Hence, the Honourable Apex Court consistently held that such time stipulated cannot be taken as mandatory, so much so also, here under Section 14 of the Hindu Marriage Act, 1955, the legislators in their wisdom thought not to impose any consequences of such non-adherence to the time limit.

27. On the other hand, as correctly held by the learned Single Judge of this Court earlier, in the decision cited supra, even a person who got leave by misrepresentation was given the benefit of divorce, but that would take effect after one year from the date of marriage. Hence, I am of the considered view that the decision of the learned Single Judge of this Court in Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435 with great respect is the binding precedent on the point concerned.

28. The learned Counsel for the husband also referred to the Halsbury's Laws of England - Fourth Edition - by Lord Mackay of Clashfern - Volume 29(3) - 2001.

29. I am of the view that when the earlier decision of this Court is clear and unambiguous on the point, I need not dilate further on that issue.

30. On factual basis, the learned Counsel for the husband would try to canvass his case by pointing out that so far the exceptional circumstances mandated in the affidavit of the wife, are not really exceptional circumstances, but they are only relating to alleged dowry harassment and cruelty. Whereas the learned Counsel for the wife would submit that the allegations found spelt out in the affidavit accompanying the application filed by the wife seeking ex post facto leave were of such a nature that they were so horrible for the wife who is a Doctor by profession.

31. The wife in her affidavit accompanying the application in I.A.No.26 of 2012, set out thus:

"4. I submit that even before the solemnization of marriage, the respondent and his family members demanded 120 sovereign of golden jewels, Rs.8,00,000/- cash and stridhan articles worth about Rs.2,00,000/- from my parents. My parents were put under severe strain and mental agony as they had to arrange the above dowry before the solemnization of marriage. Only after receiving the cash amount of Rs.8,00,000/- on hand one day prior to the marriage, the respondent has agreed to perform the marriage.

5. I submit that after marriage, the conjugal home was set up at Arupukkotai in the house of respondent. At the time of living at Arupukkottai, the respondent has demanded a further dowry of Rs.60,00,000/- from me by saying that his father has borrowed huge amounts from outer sources as a loan to get higher education for him and hence, he has to settle those amounts by getting dowry amount from me. The respondent added that he had married me for money alone. The respondent's father, and his father's brother namely, Gunasekaran, the respondent's brother and sister have often harassed and tortured me to get money to the tune of Rupees Sixty lakhs and a Honda city car from me.

6. The Respondent and his family members often threatened me that they will not allow me to live peacefully, unless I brought the above said dowry amount from my parents I lived at Hosur under unsafe condition under threat to life from the respondent. I submit that the respondent used to demand dowry continuously without any basis, and hence, because of the above said attitudes of the respondent, I could not lead a peaceful family life.

7. I submit that I am living separately till date. Even though my parents conducted peace talks with the respondent and his family, all the efforts made by them had gone on vain and the respondent firmly states that unless his additional dowry demand of Rupees Sixty Lakhs and Honda city car and a house at Arupukkottai is fulfilled, there is no possibility of unite with the petitioner.

8. It is submitted that finally on 10.3.2011, a peace talk was arranged by the respondent with caste leaders, relatives and elders. In that peace talks, the respondent and his family members told that unless, their additional dowry demands are fulfilled, there is no other way except to dissolve the marriage by way of divorce. Hence, we filed a divorce petition by mutual consent before this Hon'ble Court without any prior condition. More over, a divorce agreement was executed between me and the respondent on 10.3.2011 itself, before the competent witnesses and the respondent has put his left hand thumb impression in the said agreement engrossed in Rs.50/- Stamp paper. On the same date itself, the respondent has got the signatures of me and my parents in several blank papers and unfilled stamp papers. Even though the respondent has agreed to return the stridhan articles and cash amount in the Court. The respondent has got back his "Thali" tied to me and all the formalities were done before the above said competent witnesses on 10.3.2011.

9. I submit that myself and respondent has filed a divorce petition under mutual consent before this Hon'ble Court in H.M.O.P.No.50 of 2011. To my shock and surprise, the respondent told me that unless the house property at Arupukkottai is purchased and given in his name for the tune of Rs.40,00,000/-, he will not accept for mutual divorce. As the respondent's illegal demand could not be fulfilled by me, I filed the present H.M.O.P.No.82/2011." (extracted as such.)

32. As such, based on the above narration of facts, she contended that because of exceptional circumstances found set out therein, she was constrained to file the H.M.O.P.No.82 of 2011, within a period of one year from the date of marriage. No doubt, those allegations are only allegations and they were not proved. But, in my considered opinion, those are all serious allegations of exceptional nature and the lower Court also treated as exceptional circumstances, warranting no interference by this Court.

33. It is a singularly singular case wherein the husband and the wife both happened to be Doctors in medical profession and from the view point of the wife, the conduct of the husband in treating her constituted the exceptional circumstances and utmost hardship and discomfiture. The lower Court being the first Court of facts, after considering the allegations and counter allegations, thought fit to virtually grant ex post facto leave and this Court being the revisional Court is having no reason to interfere with the same.

34. As suggested by the learned Counsel for the husband, if the H.M.O.P., has to be dismissed, it would not be for anything, but for the wife to file a fresh H.M.O.P., on the same grounds. As such, the same process already underwent would enure. The multiplicity of proceedings should be avoided and obliterated. No doubt, the sanctity of the marriage should be preserved. Soon after the marriage, without taking steps for reconciliation, etc, and having sufficient time for reflection, they should not be allowed to approach the Court for divorce and in the meantime, one other aspect, this Court has to see. Unwittingly, if a person filed a petition for divorce without seeking leave and much water has already flown under the bridge in dealing with the said petition, it would not be proper to dismiss that petition on the technical ground after lapse of two years as in this case and it would amount to throwing the baby along with the bathe water.

35. While holding so, I am of the view that exceptions should be exceptional and it should not become the rule. So far this case is concerned, I would like to find fault with the lower Court for numbering the H.M.O.P., without insisting for an application seeking leave under Section 14 of the Hindu Marriage Act, 1955.

36. My mind is redolent of the following legal maxims: (i) "Actus curiae neminem gravabit". [An act of the court will prejudice no one.]

(ii) "Quod fieri non debet, factum valet." [What ought not to be done, when done, is valid.]

37. The lower Court should have returned the petition for divorce when it was presented well within one year from the date of marriage, but it has not been done so and it is only the fault of the Court. Because of the fault of the Court, the party concerned at a later date should not suffer.

38. In this connection, I could also fruitfully refer to the following legal maxims:

(i) "Nul prendra advantage de son tort demesne". [No one shall take advantage of his own wrong.]

(ii) "Nullus commodum capere potest de injuria sua propria". [No one can obtain an advantage by his own wrong.]

39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition for divorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.

40. I take it as an opportunity to mandate all the Courts below concerned that hereafter whenever any petition for divorce is filed within a period of one year from the date of marriage, the Courts should invariably return that petition without numbering it and unless leave is obtained, such petition for divorce should not be entertained. Point Nos.(i) and (ii) are answered accordingly.

41. In the result, both the Civil Revision Petitions are dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.

42. On hearing the order pronounced, the learned Counsel for the husband would seek oral leave of this Court so as to enable his client to prefer appeal to the Honourable Apex Court. I am of the considered view that since the order is passed based on the earlier decision of the learned Single Judge of this Court which is based on the decision of the Division Bench of Calcutta High Court, no leave is required.

rsb

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