In the case of Harpreet Singh Popli Vs. Manmeet Kaur Popli [(2010)15 SCC 316] the requirement of six months period under Section 13-B (2) of the 1955 Act was waived by the Hon'ble Supreme Court in taking a pragmatic justice oriented view on finding that there was no chance of any reconciliation and the possibility of the husband and wife living together was non existent. The Apex Court noted that a permanent alimony of Rs.1,35,000/- has been agreed to in a settlement between the parties (husband-wife), to give a quietus to all litigation between the parties and was reflected in the Section 13-B application before the court. The Hon'ble Apex Court in the circumstances was pleased to grant a decree of divorce by mutual consent and dissolved the marriage even though the original proceedings before the Hon'ble Apex Court related to the transfer of the divorce petition filed by the husband from Delhi to Meerut. In Anjana Kishore Vs. Puneet Kishore [(2002) 10 SCC 194] (Three Judges) the Hon'ble Apex Court directed the family court to consider waiving the 6 months period provided for under Section 13-B (2) of the 1955 Act making it evident that Section 13-B (2) of the 1955 Act is not mandatory but directory and can be truncated in the interest of justice to find an expeditious resolution for a couple unfortunately embroiled in a long drawn marital dispute and long separation. No contrary judgment of a bench larger than three judges on the aforesaid issue has been brought to my notice. In the instant case the parties have been living separately since 1996—for about 17 years, the comfort of marriage has become a mirage and it exists only in form—as a legal tie. The possibility of reconciliation is non existent and difficulty of making a marriage work under the order of the court quite unsurmountable. In the meantime the respondent wife has been making do with a pittance of Rs.600/-per month as maintenance while the carvan of legal proceedings goes on. In the circumstances where the parties to a matrimonial dispute have reached a settlement and the respondent wife reasonably provided for by way of permanent alimony of Rs.4,50,000/-vis-a-vis a monthly maintenance of Rs.600/-per month and the parties under the settlement will be saved from the harassment and cost of litigation in pending cases, In my considered view, in the interest of justice, following the judgments of the Hon'ble Apex Court in the case of Harpreet Singh (supra) and Anjana Kishore (supra) the six months period under Section 13-B (2) of the 1955 Act is deserving of waiver. In view of the compromise between the parties, the application for divorce by mutual consent under Section 13-B of the Act of 1955 is allowed and the miscellaneous appeal is disposed of as under:
Rajasthan High Court
Badri vs Smt Har Bai on 11 February, 2014
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANAT JAIPUR BENCH
HON'BLE MR. JUSTICE ALOK SHARMA
Citation; AIR 2014 Raj 108
The matter comes up on an application under Section 151 CPC jointly filed by appellant husband and the respondent wife for converting this miscellaneous appeal against the judgment and decree dated 31-7-2002 in Divorce Petition No.4/ 1996 passed by the District Judge Tonk into an application under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter `the 1955 Act') and grant of a divorce by mutual consent. It has been stated in the application jointly filed that during the pendency of the appeal a compromise has been entered into between the husband and the wife, wherein it has been agreed that a divorce by mutual consent be granted. In terms of the agreement an amount Rs.4,50,000/-through cheque No.145992 drawn on SBBJ, Tonk has been handed over by the appellant husband to the wife who has received it towards the final payment of permanent alimony. It has also been agreed that all cases of whatever nature in any court of law shall be withdrawn on appropriate application filed therefor by the party concerned (complainant/ plaintiff) on the next date of hearing in the respective cases. Counsel for the parties have submitted that this court can exercise its inherent power under Section 151 CPC and grant of decree of divorce by mutual consent under Section 13-B of the 1955 Act in the context of the fact that the appellant husband and the respondent wife are living separately since 1996—for over 17 years and in the event the matter is sent back to the Family court to decide the application under Section 13-B of the 1955 Act, it would only delay the resolution of the dispute, which is not in the interest of either of the parties. Only the personal rights of the parties are involved, and no question of public interest is involved in the grant of divorce by mutual consent. It has been submitted that a compromise can go beyond the scope of the suit in which it has been filed. Reference has been made to the judgment of the Hon'ble Apex court in the case of Byram Pestonji Gariwala Vs. Union Bank of India [(1992)1 SCC 31]. The appellant husband and the respondent wife are present in person in the court, their signatures duly identified by their counsel have also been obtained in the court file additionally evidencing their consent to a decree of divorce by consent aside of their joint application duly signed and identified by their advocates for mutual divorce by consent under Section 13-B of the Act of 1955. The issue to be considered is whether in an appeal from proceedings arising out of a petition under Section 13 of the 1955 Act a divorce based on mutual consent can be granted. Section 13-B (1) of the 1955 Act contemplates a divorce with mutual consent on a joint application by the husband and wife on the ground that they have been living separately for a period of one year or more, they have not been able to live together and that they have mutually agreed that the marriage be dissolved. Sub section 2 of Section 13-B however provides for a cooling of period of 6 months after the presentation of the petition for divorce by mutual consent. Thereafter in the event of the petition not being withdrawn and the court on enquiry being satisfied of the marriage and over a year's separation thereafter as also the truth of the averments in the petition is to pass a decree of divorce dissolving the marriage effective the date of the decree. In the present case Section 13-B (1) is satisfied with a joint petition with necessary averments having been filed. The question is whether the procedural requirements of Section 13(2) particularly as to time can be waived. In the case of Harpreet Singh Popli Vs. Manmeet Kaur Popli [(2010)15 SCC 316] the requirement of six months period under Section 13-B (2) of the 1955 Act was waived by the Hon'ble Supreme Court in taking a pragmatic justice oriented view on finding that there was no chance of any reconciliation and the possibility of the husband and wife living together was non existent. The Apex Court noted that a permanent alimony of Rs.1,35,000/- has been agreed to in a settlement between the parties (husband-wife), to give a quietus to all litigation between the parties and was reflected in the Section 13-B application before the court. The Hon'ble Apex Court in the circumstances was pleased to grant a decree of divorce by mutual consent and dissolved the marriage even though the original proceedings before the Hon'ble Apex Court related to the transfer of the divorce petition filed by the husband from Delhi to Meerut. In Anjana Kishore Vs. Puneet Kishore [(2002) 10 SCC 194] (Three Judges) the Hon'ble Apex Court directed the family court to consider waiving the 6 months period provided for under Section 13-B (2) of the 1955 Act making it evident that Section 13-B (2) of the 1955 Act is not mandatory but directory and can be truncated in the interest of justice to find an expeditious resolution for a couple unfortunately embroiled in a long drawn marital dispute and long separation. No contrary judgment of a bench larger than three judges on the aforesaid issue has been brought to my notice. In the instant case the parties have been living separately since 1996—for about 17 years, the comfort of marriage has become a mirage and it exists only in form—as a legal tie. The possibility of reconciliation is non existent and difficulty of making a marriage work under the order of the court quite unsurmountable. In the meantime the respondent wife has been making do with a pittance of Rs.600/-per month as maintenance while the carvan of legal proceedings goes on. In the circumstances where the parties to a matrimonial dispute have reached a settlement and the respondent wife reasonably provided for by way of permanent alimony of Rs.4,50,000/-vis-a-vis a monthly maintenance of Rs.600/-per month and the parties under the settlement will be saved from the harassment and cost of litigation in pending cases, In my considered view, in the interest of justice, following the judgments of the Hon'ble Apex Court in the case of Harpreet Singh (supra) and Anjana Kishore (supra) the six months period under Section 13-B (2) of the 1955 Act is deserving of waiver. In view of the compromise between the parties, the application for divorce by mutual consent under Section 13-B of the Act of 1955 is allowed and the miscellaneous appeal is disposed of as under:
The marriage of the appellant husband Badri and respondent wife Harbai shall stand dissolved by mutual consent in terms detailed in the application under Section 13-B of the 1955 Act. The marriage between the appellant husband Badri and the respondent wife Harbai is dissolved as of today. The respondent wife has received a sum of Rs.4,50,000/-towards full and final towards permanent alimony. The appellant husband is however directed to pay all the due amounts of maintenance under the order of the court till today within a period of two months from today. Decree be drawn accordingly. (Alok Sharma), J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.
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