Delhi High Court - Mutual Concent Divorce : DEEPAK BHATTI versus BHAWNA BHATTI

IN THE HIGH COURT OF DELHI AT NEW DELHI
CM (M) 1084/2005
18.05.2005
Date of Decision : 18th May, 2005

SH. DEEPAK BHATTI ..... Petitioner
Through Mr. Jasmeet Singh, Advocate


versus

MS. BHAWNA BHATTI ..... Respondent
Through In person.

Coram:
HON'BLE MR. JUSTICE MUKUL MUDGAL

1.Whether Reporters of local papers may be allowed to
see the judgment? NO

2.To be referred to the reporter or not? YES

3.Whether the judgment should be reported in the Digest? YES

MUKUL MUDGAL J. (ORAL)
1. Rule. With the consent of the counsel and the parties, the petition is taken up today for final hearing.
2. This petition under Article 227 challenges the order dated 3rd May, 2005, passed by the Additional District Judge which declined the preponement prayer made by the parties and failed to consider the request to waive the period of six months prescribed
under Section 13B(2) of the Hindu Marriage Act(hereinafter referred to as the `Act').
3. The marriage between the petitioner/husband and the respondent/wife, who are both Hindus, was solemnized on 16th February, 1997. The parties separated in January, 2004 and it is not in dispute that since that date the parties have been staying apar
t.
4. The parties had filed the application for divorce by mutual consent on 3rd March, 2005 under Section 13B(1) of the Act. The impugned order dated 3rd May, 2005 declined to prepone the hearing of 30th May, 2005 and to waive the statutory period of 6
months prescribed under Section 13 B (2) of the Hindu Marriage Act which reads as under:
G€˜G€˜13B. Divorce by mutual consent -

(1) x x x x
x x x x

(2) On the motion of both 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petition referred to in sub-section(1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime,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 solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be diss
lved with effect from the date of the decree.G€™G€˜
5. The first motion was recorded on 21st April, 2005 and kept for consideration for 30th May, 2005. On 3rd May, 2005, the learned Additional District Judge, Delhi took the view that due to heavy cause list the case could not be preponed even though the p
etitioner/husband had secured employment and was required to leave India would not have been available without considerable expense for the second motion six months later. In addition, the application for waiver of statutory period of six months was als
kept for 30th May, 2005. These are the orders under challenge in the present petition.
6. The learned counsel for the parties submitted that this is not a case where the marriage was merely 4 months old and it was about 8 years ago the marriage was solemnized and it has been more than one and a half years since the parties parted company
in January, 2004 and various efforts for reconciliation have not succeeded and accordingly the parties have agreed to divorce by mutual consent.
7. In support of the application for divorce seeking waiver of the six months period prescribed in Section 13B(2), reliance was placed on the position of law laid down in the following judgments (a) Andhra Pradesh High Court in K. Omprakash vs. K. Nalin
i reported as AIR 1986 AP 167 wherein it was held as under:
G€˜G€˜10. For all the above reasons, we are of the opinion that S. 13B(2) of the Hindu Marriage Act should be read as directory only. S. 13B(2), no doubt cautions the Courts of its duty to fight the last ditch battle to save the marriage; but when the Co
rt is fully satisfied on the basis of the proved facts, that in the interest of justice of the society and the individuals marriage tie should be put asunder immedaitely, S. 13-B(2) does not impose any fetter on the powers of the court to grant instant d
cree of divorce. At any rate, we are clearly of the opinion that the time table fixed by S.13-B(2) does not apply to an appellate court. The great Telugu poet vemana said that the broken iron can be joined together but not broken hearts. Parties have
een living apart for long and their wedlock has now virtually become a deadlock. Chances of reunion had completely faded away. In these circumstances, we think it just and proper to grant a decree of divorce straightaway. Accordingly we pass a decree
f divorce declaring the marriage between the appellant and the respondent as dissolved with immediate effect.G€™G€˜
(b) Kerala High Court in Sreelatha vs. Deepthy Kumar reported as AIR 1998 Kerala 97 where it was held as follows:-
G€˜G€˜5. We are of the view that this Court can act on the Memo of Compromise filed before us as indicative of a sane and sober thinking after exploring all possible avenues, if any, for bringing about a union to dissolve the marriage, having failed. We h
ve also verified from the appellant wife as also the respondent husband in the presence of their respective counsel in open Court, who also have represented before us that the Memorandum of Compromise has been filed after great deliberations and consider
tion of the pros and cons involved in the matter. The terms and conditions, subject to which the parties have agreed to have the dissolution of their marriage make it clear that each one of them has no further subsisting claims over the other.G€™G€˜

.....
G€˜G€˜Six months period provided under Sec.30-B is waived for the reason recorded in the earlier part of the judgment.G€™G€˜
(c) Karnataka High Court in Smt. Roopa Reddy vs. Prabhakar Reddy reported as AIR 1994 Karnataka 12 where it was held that the period of 6 months provided under Section 13B-2 is directory and not mandatory and the following position of law was laid down:-

G€˜G€˜13. The next question is whether the requirement under S.13-B of the Hindu Marriage Act has to be considered as mandatory or directory. The words used in the Section shall have to be read in the context in which the liberlised provision has been ma
e by the legislature enabling the unwilling parties to seek divorce instantaneously and thus to put an end to the untold misery. When the intention of the Legislature in introducing S. 13-B(2) is to liberalise and to unlock the wedlock the legislature h
s never intended the period of 6 months mentioned in the Act shall be strictly complied with. But, in spirit the Section is directory in nature and it has been incorporated to help 2 discordant spouse to get quick separation and to lead their remaini
g life without any agony. If S. 13-B(2) is read as mandatory, the very purpose of liberalising the policy of decree of divorce by mutual consent will be frustrated. Thus, S. 13-B(2), though it is mandatory in form is director in substance.

..............

18. Marriage is an union of 2 hearts. Success of married life depends on the edifice built with the mutual trust, understanding, love affection service and self sacrifice. Once this edifice is shaken, happy married life will be shattered into pieces.
The result is one of the misery and emotion. Whether one accepts it or not liberalisation in the away of living of individuals and reformation in age old customs and due to modernisation and understanding of individual rights and equal status irrespect
ve of sex it is natural for either of the spouse to seek for dissolution. Where the marriage tie has been broken the court has to look to the interest of the parties and the welfare of the children as paramount. When it is impossible to live like husba
d and wife, any compulsion to unite them will lead to social evils and disturbance of mental peace and disorder in the family life. However, rigid social fabric it is not the social system but the personal safety of the parties to the wedlock, shall pre
ail. This should be the guiding principle in view of S. 13B(1) of the Act. There is complete destruction of the essence of marriage between parties and it has reached the stage of irretrievable breakdown.

19. In the background of the circumstances narrated in the case, the request made by both parties for divorce by mutual consent is the only just and proper way to allow them to spend their remaining period of life happily with contentment instead of co
pelling them to lead a miserable and emotional life without any constructive purpose.G€™G€˜
I am in respectful agreement with the view taken by the Karnataka High Court in Smt. Roopa Reddy's case (supra) to the effect that the provisions of Section 13B(2) are directory and not mandatory.
8. The learned counsel for the petitioner has relied upon a judgment of this Court in Anita Sharma and Another Vs NIL passed on 22nd March, 2005 in CM(M) No.412/2005 wherein certain tests were laid down by this Court in cases where reduction of the si
x months period provided under Section 13B(2) of the Act is sought. The aforesaid tests are as follows:-
G€˜G€˜a) the maturity and the comprehension of the spouses;

(b) absence of coercion/intimidation/undue influence;

(c) the duration of the marriage sought to be dissolved;

(d) absence of any possibility of reconciliation;

(e) lack of frivolity;

(f) lack of misrepresentation or concealment

(g) the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties.G€™G€˜
9. Such waiver must be granted by the Court only when the aforesaid tests are satisfied and should not be granted merely for the asking by the parties.
10. I have ascertained the resolve to dissolve the marriage from both the parties, present in Court today, who agree and reiterate that it would be appropriate and indeed desirable and essential if the divorce by mutual consent be granted upon a waiver
of the six months period. I have verified from both the parties whether there is even the slightest possibility of reconciliation. Upon hearing the counsel and the parties, I am satisfied that there is no possibility of reconciliation between the parties
On my personal examination of two parties, I am satisfied that the decision is not influenced by any external factor including coercion, intimidation or undue influence by any person including the parents. Both the parties are educated and mature an
fully comprehend the contemplated parting of ways. The petitioner/husband is a graduate and doing his own business and the respondent/wife is also a graduate and working for an MNC and both are aged more than 30 years. They both appear to be mature, i
dependent and fully committed to the divorce even after a passage of about 3 months from the filing of the petition. Thus even after a passage of about 8 years from the date of the marriage, the parties are firm in their resolve to dissolve the marriage
Thus it is not a hasty decision to seek a divorce but the decision is a mature and a well considered one and not arrived at for any collateral purpose.
11. In this view of the matter the appeal is allowed and the Order dated 3rd May, 2005 is set aside. The claim for exemption from waiting for 6 months on the facts of the present case was therefore justified as all the norms laid down for the waiver la
id down in Anita Sharma's case (supra) by this Court in CM(M) No.412/05 as extracted above were fully satisfied. Accordingly, the permission to file the petition under Section 13(B) of the HMA was justified. In view of the exceptional hardships explai
ed by the parties in the present appeal, the petition under Section 13(B) (1) of the Act which was filed on 3rd March, is allowed and the marriage solemnized between the parties, i.e., Deepak Bhatti vs. Bhawna Bhatti on 16th February, 1997 is dissolved
y a decree under Section 13 (B) (1) of the Act with effect from today i.e. 18th May, 2005.
12. The petition stands allowed and disposed of accordingly. Office to draw up the decree accordingly.


18th May, 2005 (Mukul Mudgal)
kkb Judge