DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:::
JUDGMENT
Girdhari Maheshwari & Anr. Vs. NIL
D.B. CIVIL MISC. APPEAL
NO.518/2008 AGAINST THE ORDER
DATED 15.4.2008 PASED BY SHRI T.H.
SAMMA, RJHS, LEARNED JUDGE
FAMILY COURT, JODHPUR IN CIVIL
ORIGINAL CASE NO.154/2008.
DATE OF ORDER 24TH September, 2008
REPORTABLE
PRESENT
HON'BLE MR. JUSTICE PRAKASH TATIA
HON'BLE MR. JUSTICE C.M. TOTLA
Mr. S. Kala, for the appellants.
BY THE COURT: (Per Hon'ble Mr. Justice Prakash Tatia)
The facts in brief as pleaded by both the
appellants are that both the appellants fell in love with
each other and without the consent of their parent
entered into wedlock on 26.8.206 by following the
rites of Arya Samaj. They could not live together for
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a single day (or night) as immediately after their
marriage, the fact of marriage of the appellants came
in knowledge of their parents and they did not accept
this marriage. Because of above fact situation only,
the appellants stated that the “appellants do not want
to live together nor they want to continue this
marriage relation because they contacted the marriage
because of their lack of understanding”. They further
pleaded that not only they did not live together for a
single day (or night) after marriage, but they did not
meet with each other for a single moment after the
marriage. With these averments, the appellants,
husband and wife filed present petition before the
Family Court under Section 13B of the Hindu Marriage
Act, 1955 (hereinafter referred to as the Act of 1955)
for obtaining mutual consent divorce decree. They
pleaded that now both the parties- the appellants,
after obtaining the divorce decree by mutual consent,
shall live separate from each other and both the
appellants want to marry with other persons, the
person who has been chosen or suggested by their
parents or family members, therefore, both the
appellants submitted that for this their family
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members also agreed (or appellants agreed to wishes
of their parents). With these pleadings, the appellants
prayed that therefore, they are submitting this mutual
consent divorce petition under Section 13B of the Act
of 1955 and appellants prayed that their matrimonial
relation may be dissolved from today itself by
dispensation with the requirement of six months
waiting period as provided under Section 13B of the
Act of 1955, which restricts the court from passing the
decree for divorce before period of six months from
the date of presentation of petition under Section 13B
of the Act of 1955.
It appears from the copies of the divorce petition
and application submitted for dispensing from waiting
period of six months for divorce decree as required by
sub-section (2) of Section 13B and the copies of the
affidavit of parties and there relatives, which makes it
clear that the appellants submitted this petition for
divorce by mutual consent as they may have been
advised to do so by legal experts who gone through
the various judgments, which according to appellants
indicates that the requisite period of six months before
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Girdhari Maheshwari & Anr. Vs. NIL
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which decree for divorce even by mutual consent can
be granted by the court, has been considered and as
per the learned counsel for the appellants, following
the policy of liberalization in the matter of grant of
divorce, the condition for waiting for six months after
presentation of petition under Section 13B of the Act
of 1955 for mutual consent divorce is held not
mandatory and this period can be dispensed with by
the court. Therefore, the appellants who sought
divorce forthwith, on the same day, from the court
under Section 13B of the Act of 1955 annexed an
application for condonation of period of six months for
grant of divorce and quoted the following authorities
in support of their prayer for condoning the period of
six months. These are the judgment referred in the
application of the appellants dated 24th March, 2008,
which was filed on the same date on which the divorce
petition was filed under Section 13B of the At of 1955.
1. 1995(2) CCC 164 (P&H) Lalit Kumar @ Manga
Vs. Sushma Sharma.
2. 2008(1) Femi – Juris CC 134 (Mad.) K.
Thiruvengadam & Anr Vs. Nil.
3. AIR 1999 A.P. 91. In Re: Grandhi Venkata
Chitti Abbai & Anr.
DBCMA NO.518/2008
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4. II (1998) DMC 694 (DB) Kerala High court,
Manoja Kumari Vs. Bhasi.
5. 1997(1) CCC 392 (P&H) Smt. Krishna Kumari
Vs. Ashwani Kumar.
The appellants submitted an affidavit of Smt.
Kamla Devi – the mother of the appellant no.2 (wife)
and mother-in-law of the appellant no.1 (husband),
who reiterated in her affidavit what appellants stated
in their divorce petition and in affidavits and she
submitted that she (mother of the appellant no2) fixed
the marriage of the appellant no.2 on 18th April, 2008
and she already got the invitation card printed and
also distributed the invitation card, therefore, she
prayed that the divorce may be granted on the same
day obviously by dispensing with the requirement of
waiting period of two months under Section 13B of
the Act of 1955. In place of any of the parent of the
appellant no.1, one Bhagwan Birla, the relative of the
appellant no.1 submitted a brief affidavit stating
therein that appellant no.l1 contacted marriage with
appellant no.2 as per the procedure (rites) of Arya
Samaj on 26.8.2006 and their living together is not
possible and, therefore, decree for divorce may be
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granted. A joint motion application as required by
sub-section (2) of Section 13B of the Act of 1955 was
also submitted alongwith the main petition for divorce
under Section 13B of the Act of 1955 by both the
parties. The trial court vide order dated 15th April,
2008 after referring the judgments relied upon by the
appellants, which are referred in their application for
condonation of delay of six months period before
passing the decree for divorce, rejected the
appellants’ application vide impugned order dated
15.4.2008, hence, this appeal has been preferred by
the appellants.
Learned counsel for the appellants submitted
that requirement of waiting period of six months as
provided under sub-section (2) of Section 13B of the
Act of 1955 is not mandatory as held by the various
High Courts and further submitted that in view of the
fact that marriage of the appellant no.2 has already
been fixed and wedding cards have already been got
printed and then distributed, therefore, the divorce
decree may be granted forthwith by dispensing with
the “formality” of waiting period of six months under
DBCMA NO.518/2008
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Section 13B(3) of the Act of 1955. In view of the
very peculiar facts of the case, we would like to look
again into the law on marriage in Hindu community as
both the parties are governed by the Hindu law.
Before coming into force the Hindu Marriage Act,
1955, the subject of Hindu marriage the Hindus was
governed by their personal law. The concept of divorce
was not there in old Shastric Hindu Law. The view of
some of the authors on subject of marriage are
relevant, which we would like to refer hereunder:
S.K. Mitra in “Mitra on Hindu Law” Second
Edition says that, the concept of Hindu Marriage has
been described as a:
“religious ceremony which results in a
sacred and a holy union of man and wife,
by which the wife is completely
transplanted in the household of her
husband, a new birth as a partner of her
husband, becoming a part and parcel of the
body of her husband. It has primordial
importance in the contemplation of law.On the one hand, it signifies the spiritual
union of man and woman, as husband and
wife and on the other hand, it conceives of
the basic principle of mutuality bringing
two parties together with the forces of
social milieu, developing since the age-old
times of civilization. Several obligations,
corresponding duties and relative
injunctions seems to evolve out so as to
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hold this tie together and further support
and supplement its existence and principles
of morality have obviously their interplay in
this generic field. That subserves all the
social virtues of personal love, mutual
respect and best of the co-operation. The
aims and objective of this institution is to
achieve, by co-habitation of man and
woman, the supreme values of Dharma
(i.e., duty according to law and relation),
Arth (economic effort and achievement),
Kam (love and procreation) and Purusharth
(i.e. best and noble actions and deeds).
These are the material determinants of the
concept of marriage enjoins and obliges
both husband and wife to live together
under the same roof and by common effort
to achieve the goods of both. Marriage,
thus, means mutuality and respects
reciprocity.”“The bond of husband and wife enjoins
upon them the respective obligations and
duties, loyality, love chastity and care are
all the parts of the same bond on the social
plane, that answer the character either of
the husband or the wife. Negative
injunctions are also ingrained in this
relationship. The Hindu wife was enjoined
to share the life and love, joys and sorrow,
troubles and tribulations of her husband, to
render selfless service, unstinted devotion
and profound dedication to her husband
(Vaddeboyina Tulasamma vs. Sesha Reddi,
AIR 1977 SC 1944.”“In the Vedic period, the sacredness of
marriage tie was repeatedly declared;
family ideal was decidedly high and it was
often realized and after rendering about
sacredness of marriage tie from Vedic
period.”DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~9~
In Mayne’s Hindu Law and Usage 14th Edition,
the author says that:
“the wife on her marriage was at once
given an honoured position in the house.
She was mistress in her husband’s home
and where she was the wife of the eldest
son of the family, she exercised authority
over her husband’s brothers and his
unmarried sisters. She was associated in
all the religious offerings and rituals with
her husband. As the old writers put it, “a
woman is half her husband and completes
him”. Manu, in impressive verses,
exhorted men to honour and respect
women. “Women must be honoured and
adorned by their fathers, brothers,
husbands, and brother-in-law who desire
their own welfare. Where women are
honoured, there is the gods are pleased;
but where they are not honoured, no
sacred rite yields rewards”. “The husband
receives his wife from the gods, he must
always support her while she is faithful”.
“Let mutual fidelity continue until death.
This may be considered as the summary of
the highest law for husband and wife”.
Disputes between husband and wife were
not allowed to be litigated either in the
customary tribunals or in the king’s courts.
Neither bailment nor contracting of debt,
neither bearing testimony for one another
nor partition of property was allowed
between them.”The concept of divorce was foreign to Hindu
Marriage and after coming into force the Hindu
Marriage Act, 1955, the sacramental nature of
marriage may not have changed totally but certainly
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new Act on subject of Hindu Marriage has affected it.
In Acharaya Shuklendra’s “Hindu Law” for Modern Law
Publications, 1st Edition published by A.L. Dawara it is
said that:
“after the enactment of the Hindu Marriage
Act all though the Hindu Marriage is ceased
to be wholly sacramental, section 7 of the
said Act (Act of 1955) still provides that a
Hindu Marriage shall be solemnized in
accordance with the customary rights and
ceremonies of either party thereto. Sub-
section (2) of Section 7 further prescribes
that where such rights and ceremonies
include the “Saptapadi” the taking of seven
steps by the bridegroom and the bride
jointly before the sacred fire, the marriage
becomes complete and binding when the
seventh step is taken. Thus, Section 7 of
the Hindu Marriage Act as has retained and
has provided for continuance of the
performance of the customary rites and
make the same binding…..”Section 8 of the Hindu Marriage Act provides for
provisions for registration of Hindu marriages under
the Act of 1955. However, when the marriage had not
been solemnized as provided by Section 7 of the Act of
Hindu Marriage Act, registration under Section 8 by
itself will not result in making the marriage complete
and binding between the parties and held in Krishna
Pal Vs. Ashok Kumar 1982 HLR 478 (Cal.). However,
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 11 ~
essential for valid marriage is the following the
customary rights and ceremonies of either party to the
marriage and “Saptapadi” necessary and essential
ceremony for a valid marriage only in case where it is
necessary customary rights of party.
It appears from the Hindu Marriage Act, 1955
that customary rights and ceremonies have been
given due regard for a valid marriage among Hindus’,
but the parties to marriage started following the rites
and ceremonies for performing marriage, but without
there being same faith in the customary rites or in
religious ceremonies and shockingly having no faith in
institution of marriage much less to treating the
marriage as sacrosanct relation between the husband
and wife. Therefore, the word “marriage” is searching
its own definition.
The fact of this case may be shocking for some
persons, but at least they are relevant for
consideration while considering the subject having
foundation, the human relation. The appellants are
major. The so called love developed between them,
which persuaded them to take a irreversible step to
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marry and for that purpose, they opted to marry
according to Arya Samaj rites, but without the consent
and knowledge of their partents. It appears that one
of the essential ceremony of Kanyadan or offering
blessing to the weds by the parents of marring
persons is not as much essential as in other traditional
marriages. Nothing has been pleaded by the
appellants that before marring on 26.8.2006 for how
many years, months or even days they were knowing
each other. We may presume that they must not
have married without knowing each other. They must
have married in Arya Samaj because they could know
that their parents will not agree for their marriage and
they must have taken some time to take step for
marriage against the wish of their parents. Then from
the day on which, they married without knowledge of
their parents, they were separated by their family
members. From the facts mentioned in the petition,
it is not clear under what circumstances, they
accepted this position of living separately from each
other from the day of their marriage. Whether it was
as per wish of their family members and was under
compulsion? The appellants pleaded that appellant
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no.1 was busy in his business and appellant no.2
started living with her mother and father and they did
not meet thereafter with each other and straightway
they filed this mutual consent divorce petition. It
what appellants pleading is true then both the
appellants, who loved each other and contracted
scared marriage separated by their parents from the
day of their marriage without there being any dispute
between them. Since there is no contesting party, the
court will have to accept what the two persons –
appellants are saying in their petition! It may be the
strong impression of the appellants that courts are
bound to accept all improbable because two parties to
litigation said so. The court can examine the parties
under Order 10 CPC even in a matter where the
defendant admits the claim of the plaintiff for grant of
decree in favour of the plaintiff himself or in favour of
the plaintiff and defendant both.
Since from the day of marriage, appellants did
not live together and even did not met with each
other, therefore, they were claimed the opportunity to
reconcile for living together. If there are allegations of
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immorality in terms of sub-clause (i) of sub-section
(1) of Section 13 or allegations of committing cruelty
by spouse upon party to marriage or the spouse has
deserted the other party to marriage or one of the
party to marriage (Hindu) ceased to be Hindu by
conversion to another religion or one is of incurably of
unsound mind or was suffering continuously or
intermittently from mental disorder and the other
party cannot be expected to live with the respondent
or the respondent is suffering from the virulent and
incurable form of leprosy or venereal disease in a
communicable form or has renounced the world by
entering any religious order or has not been heard of
as being alive for a period of seven years; or more;
then in such grievous cases, the court is required to
make efforts for re-conciliation before passing the
decree for divorce, but cases under Section 13B of the
Act of 1955, the couple is required to only satisfy the
court that the husband and wife lived separately for a
period of one year or more and that they have not
been able to live together and that they have mutually
agreed that marriage should be dissolved. In a grave
case of grave immorality, in a case of total cruelty, in
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a case of total desertion, in a case when one of the
party to the marriage is of unsound mind, incurable
or suffering from mental disorder or diseases referred
above, yet there cannot be divorce as one part has
veto power against grant of divorce forthwith. In a
case like present where on one days two young
persons – a boy and girl decided to marry and married
and then did not live together even on the day and
night of the marriage and separated by others from
the day of marriage and never contacted or allowed to
contact each other and without any effort for rec-
conciliation by the court they decide to separate, the
court is required to grant decree for divorce!
Normally, a blink may be sufficient for love but
the marriages are not solemnized instantly even in the
case of love marriages. If the parties to marriage are
matured and capable to take decision and decides to
marry with their free will then looking to the social
aspect and if not religious aspect then they cannot
undo what they have done without following a
procedure, prescribed either by their customary law
when permissible or in accordance with the procedure
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as prescribed by law. Each individual is beneficiary of
society and, therefore, owes some duty towards
society and bound to sacrifice his some freedom to
some social structure of society in larger interest of
society. If the facts as stated by the appellants are
accepted to be true then views of the family members
of the appellants prevailed over so called their
independent decision to marry.
It appears that the appellants were taught the
law on the subject of divorce and, therefore, they
could, obviously with the help of legal advise received
by them, referred the judgments mentioned above in
their application and according to them there is a
policy of “liberalization in the matter of grant of
divorce” and to give effect to that policy the Section
13B has been introduced in the Hindu Marriage Act,
1955. We are unable to subscribe to the view
expressed by learned counsel for the appellants. We
do not find any policy like policy of liberalization in the
matter of grant of divorce even after enactment of
Section 13B of the Act of 1955. It is in fact one more
indication to recognition of holly relations of marriage
DBCMA NO.518/2008
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and that is why sub-section (2) has been put in
Section 13B of the Act of 1955, which is in total
deviation from normal procedure adopted by the civil
court. If the agreement or compromise is lawfully not
void or voidable under Indian Contract Act, 1872 and
presented in any civil litigation by the parties to the
litigation, the court is required to pass decree under
sub-rule (3) of Order 23 CPC but sub-section (2) of
Section 13B of the Hindu Marriage Act, 1955, as a last
hope of re-union of two parties to marriage placed a
restriction against passing divorce decree forthwith on
the basis of mere consent of the parties. The consent
of parties to marriage otherwise was sufficient for
passing the decree for divorce as per sub-section (1)
of Section 13B of the Act of 1955 as well as, as per
Order 23 CPC. Sub-section (2) of Section 13B requires
a motion for obtaining divorce decree from both the
parties, but it cannot be earlier than six months after
the date of presentation of mutual consent divorce
petition under sub-section (1) of Section 13B. Sub-
section (2) very specifically provide that when such
motion is presented before the court by both the
parties after expiry of six months after the
DBCMA NO.518/2008
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presentation of the petition under Section 13B(1), the
court shall pass the decree of divorce only on being
satisfied after hearing the parties and at this stage,
the court may hold such inquiry as the court may
thinks fit and for that purpose, may look into the fact
that marriage has been solemnized and that the
averments in the petition are true. Normally, the
decree under Section 13B of divorce is granted
without holding any inquiry and by recording
satisfaction because of the averments made in the
petition. The appellants as well as their parents, well
or ill advised, believed that it gave them a right to
dictate the court for dispensing with the waiting period
of six months as provided in sub-section (2) of Section
13B of the Act of 1955 and court is bound to grant
decree forthwith and also on the same day when
divorce petition is submitted under Section 13B on
dictate and command of the parties to marriage. This
is apparent from the facts of the case. This is not the
position even if it is held that condition for waiting for
six months as provided by sub-section (2) of Section
13B of Hindu Marriage Act is not mandatory. The
appellants and their family members not only decided
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to move petition for grant of divorce decree, but
before presentation of the petition under Section 13B
they decided to not only marry appellant no.2 with
other person, but the period, which is required to be
given for re-consideration to the decision of separating
has been used for searching and contacting the second
marriage with other and the appellants and appellant
no.1’s mother presumed that could will have to obey
their dictate and command and they got the marriage
invitation card printed after fixing the date of marriage
as 18th April, 2008 in a matter where the petition
under Section 13B was filed on 24th March, 2008. The
appellants benevolently gave less than one month’s
time to court for deciding the divorce petition of the
appellants. This type of petitions may come to the
court, but question is whether this was the intention
for enacting Section 13B of the Act of 1955 that
anyone in one fine morning will enter into the court
and will submit a petition and then ask the court to
pass the decree on the same day because they want a
decree of divorce. We are unable to accept this view.
It may be appropriate to look into all the
judgments referred above:
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In the case of Smt. Krishna Kumari Vs. Ashwani
Kumar reported in 1997(1) Civil Court Cases 382
(P&H), the Punjab and Haryana High Court considered
the provisions of Section 13B(2) of the Act of 1955.
In that case the appellant and the respondent married
on 22nd Sept., 1990 as per the Hindu rites, but their
marriage was not happy marriage. The wife submitted
divorce petition with allegations of cruelty and
demanding of dowry etc and alleged that she
sustained injuries on her body as her husband pushed
her on stairs and further, her husband’s sister and her
husband insulted the parents of the appellant wife.
She also alleged that family members of her husband
fanned the rumour that she had ran away. Thereafter,
she was beaten mercilessly and, thereafter, she
lodged a report to the police station, upon which a
case under Section 406, 498 IPC was registered. The
divorce petition continued upto July, 1996 then parties
submitted joint petition under Section 13B of the Act
of 1955 with application under Section 151 CPC for
converting the proceedings under Section 13 of the
Act of 1955 to proceedings under Section 13B. They
pleaded the settlement of dispute and submitted that
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in spite of re-conciliation proceedings even during
appeal they could not re-concile to live together,
therefore, the sought divorce by mutual consent. The
parties statements were recorded by the court after
the application referred above. The High Court allowed
the petition of the parties to the marriage under
Section 13B after dispensing with the waiting period of
six months. Even in above case, the learned Judge of
the Punjab and Harayana High Court observed as
under: –
“25. Legislature has contemplated that if
by moving such a petition they have
knocked the door of the District Judge’s
Court, it is required that they should be
given a reasonable time for reflection and
rethinking to consider the pros and cons of
divorce life, to take assistance of their
relations and friends to make an attempt
for their reconciliation. But if the spouses
are litigating for the last many years, many
futile attempts have already been made by
both the parties to come under the same
roof to lead a harmonious, lovable,
peaceful martial life, then in the second
inning of their litigation, if after being tried
to these litigation bouts, they submit to the
jurisdiction of the appellate court and make
a humble prayer that they are living
separately for long, they cannot live
together, so by their mutual consent they
have decided to obtain divorce, if at that
juncture, this relief is not granted to them,
it means that soul of the provision is
sacrificed for the form only.DBCMA NO.518/2008
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26. Legislature has given this right to
such spouses even when they are living
separately for one year or more, but if for
years together they are living separate, are
not able to rejoin each other, virtually they
have already shaped their marital tie, they
only want a judicial recognition of that. If
at that juncture they are made to wait for
six months more, they will be forced to
carry to pillory of marriage for long six
months with no purpose. When they are
fed up with their martial disputes and are
trying to take their necks out of this noose,
their freedom should not be denied to
them.”In the present case, there was no opportunity for
the appellants for rethinking the pros and cons of the
divorced life nor they had access to each other which
is most important for maintaining the relations or even
for breaking the relation. In the case of Smt. Krishna
Kumari (supra) the parties were litigating for more
than four years and efforts for reconciliation failed at
trial court stage and appellate court stage, therefore,
their prayer for dispensing with the waiting period of
six months was allowed.
The Andhra Pradesh High Court in the case of
Re: Grandhi Venkata Chitti Abbai & Anr reported in
AIR 1999 Andhra Pradesh 91 found that the parties to
marriage entered into wedlock a decade back, they
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gave birth to two daughters who were of the age of 9
and 7 years. There were allegation of cruelty etc.
There was litigation under Section 125 Cr.P.C. and
another for regular maintenance and a criminal case
under Section 498A was pending and in High Court
both the parties were summoned to find out whether
there is any last possibility of saving marriage and
petitioner came to the court in almost hand over state
and, thereafter, the court reached to the conclusion
that there is no possibility of revival of marriage then
the learned Single Judge of the Andhra Pradesh High
Court observed as under: –
“…..The entire concept of Hindu Law
revolves round the principle that the
marriage is not for lust but for procreation
of the children who may ultimately be
responsible to see that their parents to
reach heaven but not hell and in that
direction the entire legislation under the
Hindu Law makes it obligatory on the part
of the Courts to make last minute efforts to
save the marriage at any cost. Keeping
this principle in mind, I am of the view that
the legislature fixed six months time to
take divorce by mutual consent with a view
that in the interregnum period the tempers
may come down and parties may realize
the consequences of separation more so
the fate of the children and they may try to
enter into a compromise if sufficient time-DBCMA NO.518/2008
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lag is provided to think over before finally
parting their ways….”(emphasis supplied)
After observing as above, the Andhara Pradesh
High Court observed that when once such a situation
is ruled out then it will not serve any purpose in
directing the parties to continue the agony father.
Here the words “liberalized the process of divorce by
mutual consent which was not there prior to the
amendment” have been used. If these words read out
of context then it may be interpreted to mean that
there is any policy of liberalization in the matter of
grant of divorce for Hindu marriages. The liberalized
process of divorce is only for the situation which
warrants for grant of divorce forthwith because of the
facts of the case, which includes very many factors,
which cannot be summarized as those factors depends
upon facts of each case and some guideline can be
from the judgment even referred by the appellants
wherein the period of six months was dispensed with
and one of which is to give an end to long dispute and
to some future of the parties and the children may not
suffer.
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 25 ~
The Kerala High Court in the case of Manoj
Kumari Vs. Bhasi reported in II (1998) DMC 694 (DB)
after considering the observations of earlier judgment
of Kerala High Court delivered in the case of Sreelata
Vs. Deepthy Kumar reported in 1998(1) KLT 195
waived up the waiting period of six months under
Section 13B of the Act of 1955 in a case where there
was prolonged litigation between the parties and
welfare of the parties was in separation in the opinion
of the High Court. Even in Sreelata’s case, the Kerala
High Court observed that court is satisfied that parties
had sufficient time to think over their own future and
have come to the definite conclusion that the martial
relation has to be terminated then the court held that
waiting period of six months cannot be insisted and in
Sreelats’s case also, the court held that “liberal view
of the procedural requirement” and observed that the
court should refrain from insisting on the waiting
period of six months. Therefore, in Sreelata’s as well
as in the case of Manoj Kumari the facts were entirely
different from the facts of this case.
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 26 ~
The Madras High Court in the case of K.
Thiruvengadam & Anr. Vs. Nil reported in (2008)
Femi-Juris cc 134 (Mad) observed that the waiting
period of six months under Section 13B(2) of the Act
of 1955 is not mandatory but only directory. However,
in above case also, the Madras High Court clearly held
that if there is no possibility of re-union then it is
always open to court to decide about waiver of period
of six months and also observed that “very purpose of
liberalized concept of divorce by mutual consent will
be frustrated.” Obviously, it may happen in certain
cases if the waiting period of six months is not waived.
In above case, the complete facts of the case are not
given in detail and the Madras High Court finding
support from other judgments held that requirement
of waiting period of six months under Section 13B(2)
is not mandatory. It appears that in the case of K.
Thiruvengadam the issue which we are considering
that whether in all cases the court is bound to waive
the waiting period was not under consideration.
In the case of Sau. Sonali & Anr. Vs. Nil reported
in II (2007) DMC 844 the Bombay High Court
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Girdhari Maheshwari & Anr. Vs. NIL~ 27 ~
observed that in such a case all efforts made for
reconciliation were failed, wife was of the age of 29
years and husband was of the age of 33 years and
their marriage took place on 31st May, 2001 and the
parties are living separately since Jan., 2006 and
sufficient period was with the parties to think and
rethink and, thereafter, they failed to do so, then
period of six months was waived in Sau. Sonali’s case.
In Anamika Shrivastava Vs. Vivek Shrevastava
reported in (2008) 1 Femi-Juris CC 155 (MP) the
parties were agitating the matter before various
forums and proceedings under Section 125(3) Cr.P.C.
under Section 398A IPC and various other cases were
pending between the parties and both the parties were
living separately for more than about three and half
years and the court was of the view that there is no
possibility of reconciliation and therefore, held that
waiting period of six months under Section 13B is
directory in nature and in the given case, the
application can be decided even without waiting for
period of six months.
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 28 ~
The issue before this Court is that whether there can
be “policy of liberalisation in the matter of granting
divorce”. With utmost respect, we are of the view that
there can be policy for creating faith in the
matrimonial relations rather than framing the policy
for liberal or easy divorce. It may be a different story
that how much the object of creating faith in
matrimonial relations is achieved with the aid of law.
It may be dangerous to deal with human relations in
the same manner in which other (contractual) matters
are dealt with. None other matter, accept the
‘relation’ in family is natural and marriage is also a
natural relation and have social recognition of natural
relation of two by the societies of living being and it
has its foundation, love, faith, commitment and also
surrender. In the matter of ‘relation’, there is no place
for ‘right’ and ‘obligation’. Rights and obligations in
relations are inserted by law. And it is because of
unruly and unethical behviour of human. The role of
law in the matter of matrimonial relation, either for
keeping the relation or breaking the relation is
encroachment by law in the matter of ‘relation’
because of compulsion of unruly behaviour of party to
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 29 ~
matrimonial relation. The object of matrimonial law
is, to first see that those parties to marriage who may
not have behaved befitting to their relationship of
marriage may understand to live with their spouse and
if, in spite of bonds of love and affection, social
restrictions against easy virtues, a party to marriage
fails to behave and respect the matrimonial relation
then and than only other party can break his/her
relation from erring party to marriage. Obtaining
divorce in Hindu law has not been made easy and it
had its own aim and object. The irretrievable
breakdown of the marriage is yet not ground for
divorce. The issue of irretrievable breakdown of
marriage is not a new issue but it came under
consideration almost about 38 years ago before the
Law Commission of India. (The law commission of
India and 71st report, submitted on 7th April 1978)
Under the Hindu law, old or modern, marriage is
not a civil contract which can be rescinded by party to
marriage. It cannot be buried even by both the
parties with their free will, wish and consent (before
13 B in H.M. Act). In contrast to free society, in the
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 30 ~
matter of matrimonial relations, in Hindu law,
marriage is a sacred union of two heterogeneous for
living as homogeneous. Under old Hindu law, there
was no concept of divorce. Once marriage takes place
it continues till the death of any of the party to
marriage irrespective of fact whether they can live
together or in fact they are living together or
separate. The concept of divorce brought into the
Hindu law by modern law. The Section 13 of the
Hindu Marriage Act, 1955 prescribes the conditions in
which either party to marriage after satisfying the
court of law about the existence of the one or more of
the grounds as mentioned in the sub clauses of
Section 13, may obtain decree for divorce. The
wrongdoers are not entitled to decree for divorce by
virtue of Section 23(1)(a) of Hindu Marriage Act.1955.
The irretrievable breakdown of the marriage yet has
not been included as ground for divorce in spite of the
fact that decades ago, about more than 37 years ago,
issue of irretrievable breakdown of marriage was
under consideration before the Law Commission of
India. In our opinion, even in cases where divorce is
sought on the ground of irretrievable breakdown of
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 31 ~
marriage, it maybe because of very many reasons and
that may include fault of none, even in those cases the
concept of separate living of the parties for
considerable period before divorce cannot be granted
is sine qua non. The concept which may allow
marriage for short period and divorce for asking may
have been accepted in some other laws particularly in
western culture but yet has not been accepted in
Hindu Law, either under old Hindu law or in modern
Hindu law. Under modern Hindu law, under the Hindu
marriage act 1955, even after making provision for
divorce by mutual consent by enacting section 13B,
the legislature did not allow parties to marriage to
seek divorce before one year of their marriage.
Whether this waiting period of one year is add by
legislation superfluously, uselessly and without
propose. We have no hesitation in answering it in
negative. The obvious reason for keeping some time
before marriage can be broken the opportunity must
be given to the parties to the marriage who may
instead of getting permanent and deep scar, they
themselves may heel it. There may be some
aberrations due to lack of understanding between the
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 32 ~
marrying persons and therefore, those natural wear
and tear required to be given some time for their
heeling. Even in the case of abrupt decision to marry,
decision to break the matrimonial relation abruptly is
impermissible, legally as well as morally. It maybe
argued that in matrimonial relations even initial
aberrations are graver than the injuries which may be
suffered after some time to marriage. That argument
was never accepted and it is provided statutory that
no party to marriage can submit divorce petitions
before expiry of one year from the date of marriage,
unless there exists lawful reason for a petition for
divorce before that statutory period. So is provided
inspite of fact that several laws have been enacted to
punish the offenders of matrimonial offences, after
noticing that serious offences of not only cruelty
causing mental torture or physical torture but burning
of young bride. Restrictions against the divorce to
reasonable extent is advantages not only to families or
societies but it is advantageous to the married persons
how want to separate and in the social setup in India,
more advantageous to the women where second
marriage of women is difficult as compared to second
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 33 ~
marriage of male. If opportunity is given to a man of
getting rid off from matrimonial relations just for
asking than there is more chances of exploitation of
women and of committing of offences by the male
against the women. In this respect if male and female
are accepted as at par with each other than we shall
be ignoring the ground realities of the social setup of
for whose benefit the personal laws have been enacted
by exercising powers under the Constitution of India.
The matrimonial matters cannot be decided by
remaining aloof from human psychology of the
persons for whom laws have been enacted either by
custom or by statute.
The law commission of India and 71st report, which
was submitted to the Government on 7th April 1978
dealt with the said issue in brief. And this fact was
considered by the Hon’ble Supreme Court in a detailed
judgment in the case of NAVEEN KOHLI V. NEELU
KOHLI [2006] RD-SC 135 (21 March 2006) and
Honourable Supreme Court recommended union of
India to consider seriously for bringing amendment in
the Hindu Marriage Act, 1955 so as to incorporate
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 34 ~
irretrievable breakdown of marriage as a ground for
grant of divorce. In the 71st report of the Law
Commission of India” it is mentioned that during last
20 years or so, and now it would around 50 years, a
very important question has engaged the attention of
lawyers, social scientists and men of affairs, namely,
should the grant of divorce be based on the fault of
the party, or should it be based on the breakdown of
the marriage? The former is known as the matrimonial
offence theory or fault theory. The latter has come to
be known as the breakdown theory. “(Quoted from
Naveen Kohli’s case)
It will be worthwhile to mention here that the
Hon’ble Apex while recommending the amendment in
law to include the irretrievable breakdown of marriage
as a ground for grant of divorce describe what is
marriage as under:-
“The foundation of a sound marriage is
tolerance, adjustment and respecting one
another. Tolerance to each other’s fault to
a certain bearable extent has to be
inherent in every marriage. Petty quibbles,
trifling differences should not be
exaggerated and magnified to destroy what
is said to have been made in heaven. All
quarrels must be weighed from that point
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 35 ~
of view in determining what constitutes
cruelty in each particular case and as noted
above, always keeping in view the physical
and mental conditions of the parties, their
character and social status. A too technical
and hyper- sensitive approach would be
counter-productive to the institution of
marriage. The Courts do not have to
deal with ideal husbands and ideal
wives. It has to deal with particular
man and woman before it. The ideal
couple or a mere ideal one will
probably have no occasion to go to
Matrimonial Court.” (Emphasis supplied)In Chetan Dass vs. Kamla Devi reported in
(2001) 4 SCC 250, this Court observed that,
“Matrimonial matters are matters of
delicate human and emotional relationship.
It demands mutual trust, regard, respect,
love and affection with sufficient play for
reasonable adjustments with the spouse.
The relationship has to conform to the
social norms as well.The matrimonial conduct has now come to
be governed by statute framed, keeping in
view such norms and changed social order.
It is sought to be controlled in the interest
of the individuals as well as in broader
perspective, for regulating matrimonial
norms for making of a well-knit, healthy
and not a disturbed and porous society.”DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL~ 36 ~
Two years have passed said
recommendation yet law had not been changed
so as to incorporate the irretrievable breakdown
of marriage as ground for divorce in the Hindu
Marriage Act, 1955. Be it is it maybe, even if
irretrievable breakdown of marriage will be
considered as ground for divorce even then basic
ingredients for irretrievable breakdown of
marriage cannot be less than living separate for
considerable period. Divorce may not be
available to married.
The present is not “a given case” wherein the
trial court could have waived the waiting period under
Section 13B(2) of the Act of 1955.
In view of the above discussion since the
appellants failed to show any reason for waiving with
the period of six months before passing the decree for
divorce even then it is held that the requirement of
waiting period of six months as required by sub-
section (2) of Section 13B of the Hindu Marriage Act,
1955 is not mandatory and is directory even then the
appellants are not entitled to any relief.
DBCMA NO.518/2008
Girdhari Maheshwari & Anr. Vs. NIL
~ 37 ~
Consequently, the appeal of the appellants is
dismissed.
[C.M. TOTLA],J. [PRAKASH TATIA],J.
cpgoyal/-