Thursday 27 November 2014

Whether court can grant decree for divorce by mutual consent within six month from date of filing of petition?



 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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