Delhi High Court - Mutual Concent Divorce - ANITA SHARMA versus NIL

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision : 22nd March, 2005

CM (M) No. 412/2005 and CM 3642/2005
22.03.2005

MS. ANITA SHARMA and
SHRI HARISH KUMAR SHARMA ..... Petitioners
Through Mr. P.K. Bhardwaj, Advocate


versus

NIL ..... Respondent

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 petitioners' counsel the petition is taken up today for final hearing.
2. This petition under Article 227 challenges the order dated 17th January, 2005, passed by the Additional District Judge which declined the joint prayer made by the parties to waive the period of six months prescribed under Section 13B(2) of the Hindu M
arriage Act(hereinafter referred to as the `Act').
3. The marriage between the petitioner/wife and the respondent husband who are both Hindus, was solemnized on 20th November 1999. The parties separated on 28th August 2001 and it is not in dispute that since that date the parties have been staying apa
rt.
4. The parties had filed the application for divorce by mutual consent on 15th December 2004 under Section 13B(1) of the Act. The impugned order dated 17th January 2005 declined 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petition referred to in sub-section(1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime,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 allowed on 11th January 2005 but on 17th January 2005 the learned Addl. District Judge, Delhi took the view upon an interpretation of the aforesaid Section 13B(2), that the 6 months period prescribed in the said statute could not
be waived as this period of waiting was provided to the parties to reconsider the decision in a calm and cool atmosphere so that hasty divorces are not taken. This is the order under challenge in the present petition.
6. The learned counsel for the petitioners submitted that this is not a case where the marriage was merely 6 months old and it was more than 6 years ago the marriage was solemnized and it has been more than 4 years since the parties parted company on 28
th August, 2001 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. This Court also in a judgment in FAO 756 of 2003 in Pooja Gupta and Another vs. Nil in respect of a petition under Section 13 B(1) of the Act had held as follows:
G€˜G€˜The above statement of objects and reasons though made in the context of parity with Section 28 of Special Marriage Act also clearly indicates that the legislative intent was expeditious disposal of divorces by mutual consent. In my view as long a
the Court is satisfied as an essential reason for exemption for filing a divorce by mutual consent prior to expiry of one year after the marriage that the plea for mutual consent is not under coercion/intimidation or undue influence and there are no ch
nces of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent, the continuance of such a marriage is bound to cause undue hardship to the spouses. The other relevant considerations which may be cons
dered for granting the exemption from passage of one year before filing a petition for divorce by mutual consent are:-

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.
9.Even though the above guidelines were laid down in the context of the provisions of Section 13B(1), nevertheless the tests for determining whether conditions exist for reduction of one year period stipulated in Section 13-B(1) apply equally to a situa
tion where waiver of a period of six months stipulated by Section 13-B(2) is sought by both spouses. 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 as well as from their parents, 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 r
conciliation 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 p
rties are educated and mature and fully comprehend the contemplated parting of ways. The petitioner No.1/wife is a teacher and the petitioner No.2/husband is employed in a college and both are aged about 32 years. They both appear to be mature, indepen
ent 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 6 years from the date of the marriage, the parties are firm in their resolve to dissolve the marriage. Thu
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 under any external influence. Furthermore the divorce by mutual consent will also lead to the resolution/withdrawal of criminal pro
eedings between the spouses occasioned by the embittered marriage.
11. In this view of the matter the appeal is allowed and the Order dated 17th January 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 waive
r laid down in Pooja Gupta's case (supra) by this Court in FAO 756/03 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 explained
by the parties in the present appeal, the petition under Section 13(B) (1) of the Act which was filed on 11th January 2005 is allowed and the marriage solemnized between the parties, i.e., Anita Sharma and Harish Kumar Sharma on 20th November 1999 is di
solved by a decree under Section 13 (B) (1) of the Act with effect from 1st April 2005.
12. The petition stands allowed and disposed of accordingly. Office to draw up the decree accordingly.

22nd March, 2005 (Mukul Mudgal)
sp Judge