In the ultimate analysis the aforesaid
discussion throws up two propositions. The first
proposition is that although irretrievable break
down of marriage is not one of the grounds
indicated whether under Section 13 or 13-B of the
Hindu Marriage Act, 1955, for grant of divorce,
the said doctrine can be applied to a proceeding
under either of the said two provisions only where
the proceedings are before the Supreme Court. In
exercise of its extraordinary powers under Article
142 of the Constitution the Supreme Court can
grant relief to the parties without even waiting for
the statutory period of six months stipulated in
Section 13-B of the aforesaid Act. This doctrine of
irretrievable break down of marriage is not
available even to the High Courts which do not
have powers similar to those exercised by the
Supreme Court under Article 142 of the
Constitution. Neither the civil Courts nor even the
High Courts can, therefore, pass orders before
the periods prescribed under the relevant
provisions of the Act or on grounds not provided
for in Sections 13 and 13-B of the Hindu Marriage
Act, 1955."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 4TH DAY OF JULY 2014.
OP (FC).No. 309 of 2014 (R)
----------------------------
Dated this the 4th day of July, 2014.
Citation;AIR 2014 kerala 161
A.Hariprasad, J.
Original Petition filed under Article 227 of the Constitution of
India. Petitioner seeks the following reliefs:
"i) To issue a directing (sic) the
learned Judge of the Family Court, Thrissur to
dispose of O.P.No.708/2014 expeditiously by
waiving the 6 months period and by the next
hearing date;
ii) To issue such other orders,
direction (sic) may be prayed for and that this
Hon'ble Court may deem fit on the facts and
circumstances of the case."
2. Kernel of the facts:
Petitioner is the wife of the respondent. Admittedly they are
Hindus governed by the Hindu Marriage Act, 1955 (in short, "the Act").
Their marriage was solemnized on 10.07.2009.
3. Nuptial euphoria did not last long. Gradually their relationship
ran into rough weather. Ultimately they realised that it was impossible to
live together as man and wife. There was an earlier round of litigation
between the parties as the wife approached this Court with O.P.(FC) No.59
of 2014. In that proceedings, this Court directed the parties to try a chance
at mediation to settle the differences. Pursuant to that direction, the parties
approached the Kerala Mediation Centre. It is to be noted that other
litigations were also pending between the parties. In the mediation, the
parties settled all the disputes. As per the mediation settlement agreement
dated 24.03.2014, executed between the parties, this Court disposed of
O.P.(FC) No.59 of 2014 vide Ext.P4 judgment. A copy of the mediation
settlement agreement is attached to Ext.P4 judgment. As agreed in the
mediation settlement agreement, the petitioner and the respondent jointly
filed a petition for divorce under Section 13B of the Act before the Family
Court, Thrissur. A copy of the petition is produced and marked as Ext.P1.
Ext.P2 is the interlocutory application filed by the petitioner before the
Family Court requesting it to waive the six months waiting period
prescribed under Section 13B(2) of the Act. Ext.P3 is the application filed
before the Family Court to advance the hearing date of the petition. The
Family Court did not consider these applications. Hence the petitioner has
come up before this Court.
4. Heard Sri.Kaleeswaram Raj, the learned counsel for the
petitioner. Noticing the binding judicial precedents applicable to the points
raised in this petition, we are of the view that the matter can be disposed
without sending notice to the respondent.
5. Learned counsel for the petitioner relied on a large body of
case law to fortify his argument that the Family Court, in appropriate cases,
has the power to waive the waiting period of six months prescribed under
Sub-section (2) of Section 13B of the Act. We need only consider in detail
the ratio in Lakshmi Prasad v. Hareesh G.Panicker (2014 (1) KLT 850), a
decision rendered by a Division Bench of this Court and Priyanka Khanna
v. Amit Khanna (2012 (1) KLT 249(SC)). Other decisions are rendered by
various High Courts and have only persuasive value. We shall consider the
scope and applicability of these decisions in the latter part of this judgment.
6. Section 13B of the Act is extracted hereunder for clarity:
"Divorce by mutual consent.-(1) Subject
to the provisions of this Act a petition for
dissolution of marriage by a decree of divorce
may be presented to the district court by both the
parties to a marriage together, whether such
marriage was solemnised before or after the
commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976), 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 the marriage should be
dissolved.
(2) On the motion of both the parties
made not earlier than six months after the date of
the presentation of the petition referred to in sub-
section (1) and not later than eighteen months
after the said date, if the petition is not withdrawn
in the meantime, the court shall, on being
satisfied, after hearing the parties and after
making such inquiry as it thinks fit, that a marriage
has been solemnised and that the averments in
the petition are true, pass a decree of divorce
declaring the marriage to be dissolved with effect
from the date of the decree."
7. Sub-section (1) of Section 13B of the Act is applicable to
marriages solemnised before or after commencement of the amendment to
the Act by Act 68 of 1976 (w.e.f. 27.05.1976). On a careful scrutiny of Sub-
section (1) of Section 13B of the Act, it can be seen that the cause of action
for filing a petition under this provision is accrued to the parties to the
marriage on the ground that they have been living separately for a period of
one year or more and that they have not been able to live together. The
cardinal prerequisite is that the parties have mutually agreed that the
marriage should be dissolved for the aforementioned reasons.
8. The procedural steps that are to be taken after filing the
petition for divorce by mutual consent are provided under Section 13B(2) of
the Act. It prescribes a period of six months for making a motion for
seeking relief under the Section. The outer time limit fixed for making the
motion by the parties is 18 months. The provision shows that if the parties
make a motion for divorce six months after the date of presentation of the
petition and before the expiry of 18 months after the said date and if the
petition is not withdrawn in the meantime, the court shall hear the parties
and make appropriate enquiry. And on being satisfied that the grounds
mentioned in Sub-section (1) of Section 13B of the Act continued even on
that date and the averments in the petition are true, then the court shall
pass a decree declaring the marriage to be dissolved with effect from the
date of decree. It is mandatory that the court should make an enquiry as to
truthfulness of the averments in the petition. Ostensible object of providing
six months waiting period for making the motion by the parties is for
exploring the possibility of reunion. Life span of the petition filed under
Section 13B(1) of the Act is 18 months. So, the parties could, if they so
choose, avail one year for reflection as to whether the marriage should be
kept alive or it has to be put an end to by a decree of divorce.
9. Section 13B of the Act is no doubt subject to Section 14 of the
Act, which says that it shall not be competent for any court to entertain any
petition for dissolution of marriage by a decree of divorce unless, at the
date of its presentation, one year has elapsed since the date of marriage.
Section 14 of the Act starts with a non-obstante clause and this gives a
clear indication that the time stipulation in the Section is applicable to
Section 13B of the Act as well. Further more, Section 13B of the Act also
says that the right to file a petition for divorce by mutual consent is subject
to the provisions in the Act, thereby meaning that it is subservient to
Section 14 of the Act.
10. The vexed question in this case is whether the Family Court
can waive the period of six months prescribed in Section 13B(2) of the Act
and allow the parties to make the motion before expiry of the said period.
If the Family Court is powerless to waive the period of waiting fixed by the
statute, then no direction as prayed for can be issued by this Court.
11. Learned counsel for the petitioner heavily relied on Lakshmi
Prasad's case (supra) and Priyanka Khanna's case (supra). Before
dealing with them, we will consider the decision of the Apex Court in
Anjana Kishore v. Puneet Kishore ((2002) 10 SCC 194). Facts in that
decision show that the petitioner approached the Supreme Court for
transfer of the divorce petition filed by the respondent-husband before the
Family Court at Bandra, Mumbai. She wanted the case to be transferred to
the Family Court at Saharanpur, Uttar Pradesh. In spite of the best efforts
made to amicably settle the issues, the parties were not amenable for
restoring their relationship. They filed a compromise agreement before the
Supreme Court. Considering the subsequent developments in the matter,
the Supreme Court directed the parties to file a joint petition before the
Family Court at Bandra, Mumbai for grant of divorce by mutual consent
under Section 13B of the Act. They were also permitted to file an
application for curtailment of time for grant of divorce and on such
application being moved before the Court, it was directed to dispense with
the need of waiting for six months. It is clearly discernible from the
decision that the Supreme Court had invoked its power under Article 142 of
the Constitution of India to issue such directions. Article 142 of the
Constitution of India empowers the Supreme Court to pass such decree or
make such order as is necessary for doing complete justice in any cause or
matter pending before it. Any such decree or order so passed, shall be
enforcible through out the territory of India in such manner as may be
prescribed. The power under Article 142 of the Constitution is meant to
supplement the existing legal frame work and not supplant it. This is
intended to do complete justice between the parties. It is conceived to
meet situations which cannot be effectively and appropriately tackled by the
existing provisions of law. It has been held by the Apex Court that it is
advisable to leave this power undefined and uncatalogued so that it
remains elastic enough to mould reliefs to suit the given situation. The very
fact that the power is conferred only upon the Supreme Court, and no
one else, is itself an assurance that it will be used with due restraint and
circumspection; keeping in view the ultimate object of doing complete
justice between parties (see - Delhi Development Authority v. Skipper
Construction Co. (P) Ltd. - (1996) 4 SCC 622). It has been held in
various decisions by the Apex Court that the court's power to do complete
justice is not confined to any statutory provision. The exercise of power is
not conditioned on any statutory power because statutory provisions
cannot override the constitutional provisions. Further, it has been held that
the power under Article 142(1) of the Constitution cannot be diluted merely
because statutes may provide certain formalities to be fulfilled before any
order could be passed (see- Mohd. Anis v. Union of India - 1994 Supp
(1) SCC 145; Delhi Judicial Service Association v. State of Gujarat -
(1991) 4 SCC 406 and Union Carbide Corpn. v. Union of India - (1991) 4
SCC 584). The Supreme Court in Anjana Kishore's case (supra) has
evidently exercised its jurisdiction under Article 142 of the Constitution.
Fact of the matter is that such a power is not available to any other court in
the country. Hence we are of the view that the directions given by the Apex
Court in Anjana Kishore's case (supra) cannot be replicated by this Court.
12. Learned counsel for the petitioner placed reliance on
Priyanka Khanna's case (supra). The Supreme Court, taking cognizance
of the facts that the parties were litigating from 2006 onwards and also that
there were 12 cases between them at the material time, deduced from the
trend of the litigations pending that it could only be considered that their
relationship have broken down in a very nasty manner and that there was
absolutely no possibility of a rapprochement between them even if the
matter was to be adjourned for a period of six months as stipulated under
Section 13B of the Act. In the peculiar facts and circumstances of the
case, the Supreme Court terminated all litigations between the parties and
allowed the application filed under Section 13B of the Act, thereby
dissolving the marriage between the parties. Further, it is directed that a
decree should be drawn up accordingly. Here also it is evident that the
Supreme Court was exercising its plenary power under Article 142 of the
Constitution of India. Hence, the decision cannot help the petitioner to
contend that the Family Court has the power to waive the waiting period
prescribed in the provision.
13. Before we deal with Lakshmi Prasad's case (supra), we shall
refer to two binding precedents of the Supreme Court relevant to the
subject. Anil Kumar Jain v. Maya Jain ((2009) 10 SCC 415) was a case
wherein the parties to an irretrievably broken down marriage approached
the Family Court with a petition under Section 13B of the Act. Learned
Judge of the Family Court fixed the time for consideration of the petition
after six months of its filing. After six months, the matter was taken up by
the court. The appellant-husband reiterated his earlier stand that a decree
of mutual divorce should be passed on account of the fact that it was not
possible for the parties to live together. However, the respondent-wife had
shown a volte-face to divorce and she withdrew her consent for divorce.
Reckoning those facts, the trial court dismissed the petition. The matter
was taken up before the High Court. Before the High Court, the
respondent-wife expressed her desire to live separately from her husband,
but she did not want a decree for dissolution of marriage to be passed.
The High Court also dismissed the appeal taking into account the stand of
the respondent-wife. Aggrieved by that judgment, the husband had
approached the Apex Court. In that circumstances, the Supreme Court
considered the scope and ambit of the provision and also the precedents
on the point. Statement of law in paragraphs 27 to 29 of the decision is as
follows:
" 27. In all the subsequent cases,
the Supreme Court invoked its extraordinary
powers under Article 142 of the Constitution of
India in order to do complete justice to the parties
when faced with a situation where the marriage-
ties had completely broken and there was no
possibility whatsoever of the spouses coming
together again. In such a situation, this Court felt
that it would be a travesty of justice to continue
with the marriage ties.
28. It may, however, be indicated that in
some of the High Courts, which do not possess
the powers vested in the Supreme Court under
Article 142 of the Constitution, this question had
arisen and it was held in most of the cases that
despite the fact that the marriage had broken
down irretrievably, the same was not a ground for
granting a decree of divorce either under Section
13 or Section 13-B of the Hindu Marriage Act,
1955.
29. In the ultimate analysis the aforesaid
discussion throws up two propositions. The first
proposition is that although irretrievable break
down of marriage is not one of the grounds
indicated whether under Section 13 or 13-B of the
Hindu Marriage Act, 1955, for grant of divorce,
the said doctrine can be applied to a proceeding
under either of the said two provisions only where
the proceedings are before the Supreme Court. In
exercise of its extraordinary powers under Article
142 of the Constitution the Supreme Court can
grant relief to the parties without even waiting for
the statutory period of six months stipulated in
Section 13-B of the aforesaid Act. This doctrine of
irretrievable break down of marriage is not
available even to the High Courts which do not
have powers similar to those exercised by the
Supreme Court under Article 142 of the
Constitution. Neither the civil Courts nor even the
High Courts can, therefore, pass orders before
the periods prescribed under the relevant
provisions of the Act or on grounds not provided
for in Sections 13 and 13-B of the Hindu Marriage
Act, 1955."
14. In a subsequent decision, Manish Goel v. Rohni Goel ((2010)
4 SCC 393), the Supreme court re-stated the law in respect of its power
under Article 142 of the Constitution of India as one available to do
complete justice, but it was observed that generally, no court has
competence to issue a direction contrary to law, nor can the court direct an
authority to act in contravention of the statutory provisions. It is further
observed that the courts are meant to enforce the rule of law and not to
pass orders or directions which are contrary to what has been laid down by
law.
15. In Manish Goel's case (supra), the Supreme Court stated
further:
" We are fully alive of the fact that this
court has been exercising the power under Article
142 of the Constitution for dissolution of marriage
where the Court finds that marriage is totally
unworkable, emotionally dead, beyond salvage and
has broken down irretrievably, even if the facts of
the case do not provide a ground in law on which
the divorce could be granted. Decree of divorce has
been granted to put quietus to all litigations between
the parties and to save them from further agony, as
it is evident from the judgments in Romesh Chander
v. Savitri, (1995) 2 SCC 7: AIR 1995 SC 851;
Kanchan Devi v. Promod Kumar Mittal, (1996) 8
SCC 90:AIR 1996 SC 3192; Anita Sabharwal v. Anil
Sabharwal, (1997) 11 SCC 490; Ashok Hurra v.
Rupa Bipin Zaveri, (1997) 4 SCC 226: AIR 1997 SC
1266; Kiran v. Sharad Dutt (2000) 10 SCC 243;
Swati Verma v. Rajan Verma, (2004) 1 SCC 123:
2004 SCC (Cri.) 25: AIR 2004 SC 161; Harpit Singh
Anand v. State of W.B. (2004) 10 SCC 505: 2004
SCC (Cri.) 1911; Jimmy Sudarshan Purohit v.
Sudarshan Sharad Purohit (2005) 13 SCC 410;
Durga Prasanna Tripathy v. Arundhati Tripathy,
(2005) 7 SCC 353: AIR 2005 SC 3297; Naveen
Kohli v. Neelu Kohli, (2006) 4 SCC 558: AIR 2006
SC 1675; Sanghamitra Ghosh v. Kajal Kumar
Ghosh (2007) 2 SCC 220; Rishikesh Sharma v.
Saroj Sharma (2007) 2 SCC 263; Samar Ghosh v.
Jaya Ghosh ((2007) 4 SCC 511; Satish Sitole v.
Ganga, (2008) 7 SCC 734: (2008) 3 SCC (Cri.) 225:
AIR 2008 SC 3093. However, these are the cases,
where this Court came to rescue the parties on the
ground for divorce not provided for by the legislature
in the statute"
The Supreme Court after carefully examining the facts and circumstances
in that case, held that it was not a case where there has been any
obstruction to the stream of justice or there had been injustice to the
parties, which was required to be eradicated. It was also found that the
petition did not raise any question of general public importance. Therefore,
the Supreme Court refused to invoke its power under Article 142 of the
Constitution of India in that case.
16. After having understood the law on the point as stated above,
we shall consider the sustainability of the dictum in Lakshmi Prasad's
case (supra). For completeness of discussion, we shall consider the basic
facts in nut-shell. A petition for divorce was filed by the husband urging the
ground of cruelty under Section 13(1)(ia) of the Act. After trial, the petition
was allowed and the marriage was dissolved by a decree of divorce. The
wife challenged the decree before this Court in appeal. During pendency
of the appeal, at the request of the counsel appearing for both the parties,
this Court referred the parties to mediation. The mediation succeeded, the
parties settled their disputes and they executed a memorandum of
agreement. When the case was taken up for consideration, the parties
urged before this Court that they were agreeable to dissolve the marriage
by a decree of divorce on mutual consent. With that view, they filed an
interlocutory application in the above appeal seeking dissolution of
marriage by mutual consent. The application was supported by affidavits
filed by both the parties, in which they reiterated their decision to dissolve
the marriage by mutual consent. This Court, taking note of the principles
in Visalakshi v. Shivaraman Nair (1991 (1) KLT 910) and Sreelatha v.
Deepthy Kumar (1998 (1) KLT 195) and the decisions of other High
Courts as well, held that in appropriate cases the waiting period prescribed
under Section 13B(2) of the Act can be waived. It is pertinent to note that
the binding precedents, viz., Anil Kumar Jain's case and Manish Goel's
case (mentioned supra) were not brought to the notice of the Division
Bench while dealing with Lakshmi Prasad's case. It could be seen in the
above backdrop that Lakshmi Prasad's case was decided wrongly as it
went against the statutory provision and the binding precedents. We would
have been bound to refer the ratio in Lakshmi Prasad's case for
consideration of a Full Bench if we had a different legal approach to the
issue. But here the legal position is settled by the pronouncements of the
Apex Court. So, we find that the principle of law stated in Lakshmi
Prasad's case is legally unacceptable as it runs contrary to the binding
precedents and hence it requires no reference. With respect, we hold that
the ratio in Lakshmi Prasad's case (supra) is not good law. Based on the
dictum in Lakshmi Prasad's case, the petitioner is not entitled to claim any
relief. Further, the law stated by the Supreme Court in Priyanka Khanna's
case (supra) will not be helpful to the petitioner to contend that the Family
Court can cut short the waiting period provided under Section 13B(2) of the
Act.
In the result, we find that the petition is devoid of any legal basis and,
therefore, it is liable to be dismissed. Hence, we do so.
V.K.MOHANAN, JUDGE.
A. HARIPRASAD, JUDGE.
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