IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 633 of 2008(A)
1. M.KRISHNA PREETHA, AGED 29 YEARS,
... Petitioner
Vs
1. DR.JAYAN MOORKKANATT, AGED 36 YEARS,
... Respondent
2. DR. P.SIVASANKARAN "KRISHNA",
For Petitioner :SRI.SHOBY K.FRANCIS
For Respondent :SRI.G.SREEKUMAR (CHELUR)
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :22/02/2010
O R D E R
CR
R. BASANT &
M.C. HARI RANI, JJ.
-------------------------------------------------
Mat. Appeal No. 633 of 2008-A
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Dated this the 22nd day of February, 2010
JUDGMENT
Basant,J.
Can the waiting period after filing the joint petition for
divorce under Sec.13B of the Hindu Marriage Act, Sec.10A of
the Indian Divorce Act and Sec.28 of the Special Marriage Act
be waived by the court suo motu or on the application of both
parties?
2. This question arose for consideration in various
petitions and we posted all such cases together for hearing.
Sri. G. Shrikumar, Advocate, has rendered assistance as
amicus curiae for the court. We have had the advantage of
hearing Advocates M/s S. Subash Chand, , Sandhya Raju,
M.R. Rajesh, R. Sunilkumar, Shoby K. Francis and others on
the question. We are answering that question in this case.
The finding on that question in this case will be followed in all
Mat. Appeal No. 633/08 -: 2 :-
other cases.
3. Sec.13B of the Hindu Marriage Act, Sec.10A of the
Divorce Act and Sec.28 of the Special Marriage Act are all
identically worded except in so far as it relates to the stipulation
of a larger period of separate residence under Sec.10A of the
Divorce Act. That distinction is of no consequence in so far as
the question to be considered in this case, raised above, is
concerned.
4. The concept of marriage being solemn, sacrosanct and
indissoluble is deeply rooted in the Hindu and Christian
thoughts and way of life. The concept of divorce was itself
accepted and recognized in these systems of personal laws after
a long period which witnessed slow evolution of the law.
Divorces on the ground of contumacious fault of the spouses and
on the ground of absence of unavoidable requirements/essentials
for a healthy married life were recognized by law initially. But
the voluntary dissolution of marriage at the option of the spouses
was not accepted as a concept for a long period of time in many
systems of personal laws. With the progressive development of
the society and in its march towards modernism, marriage was
looked upon more as a social institution entered into by the
Mat. Appeal No. 633/08 -: 3 :-
spouses voluntarily as an incident of the right to life and pursuit
of happiness. The institution of marriage started to be reckoned
and perceived as one of complementarity partnership,
friendship, association, love, affection, caring and sharing etc.
With that, the concept of marriage as an institution made in
heaven over which spouses have no control started waning.
With that came the further thought and idea of terminating the
relationship of marriage by the spouses voluntarily by mutual
consent. Many a battle had to be fought to get the altered
concepts accepted by the society. The change/transformation of
mind set was not ushered in one fine morning or with ease. At
long last we find individuals, community, society at large, public
opinion and legislators yielding to such a concept of marriage
and its dissolution and slowly accepting the idea of divorce by
mutual consent. Secular personal law as also the different
personal laws were constrained to swim with the times and
accept the concept of divorce by mutual consent on joint
application of the spouses.
5. We shall extract the provisions of Sec.13B of the Hindu
Marriage Act, Sec.10A of the Divorce Act and Sec.28 of the
Special Marriage Act for easy reference. They read as follows:
Mat. Appeal No. 633/08 -: 4 :-
“13.B of the Hindu Marriage Act.
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,
Mat. Appeal No. 633/08 -: 5 :-
pass a decree of divorce declaring the
marriage to be dissolved with effect from
the date of the decree.”
“10A of the Divorce Act. Dissolution
of marriage by mutual consent.– (1)
Subject to the provisions of this Act and
the rules made thereunder, a petition for
dissolution of marriage 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 Indian Divorce
(Amendment) Act, 2001, on the ground
that they have been living separately for a
period of two years or more, that they
have not been able to live together and
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 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 by both the
parties in the meantime, the Court shall,
on being satisfied, after hearing the
parties and making such inquiry, as it
Mat. Appeal No. 633/08 -: 6 :-
thinks fit, that a marriage has been
solemnised and that the averments in the
petition are true, pass a decree declaring
the marriage to be dissolved with effect
from the date of decree.”
“Sec.28 of the Special Marriage Act.
Divorce by mutual consent.– (1)
Subject to the provisions of this Act and to
the rules made thereunder, a petition for
divorce may be presented to the district
court by both the parties together 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 district court shall, on being
satisfied, after hearing the parties and
after making such inquiry as it thinks fit,
that a marriage has been solemnized
Mat. Appeal No. 633/08 -: 7 :-
under this Act, and that the averments in
the petition are true, pass a decree
declaring the marriage to be dissolved
with effect from the date of the decree.”
(emphasis supplied)
6. The legislative scheme has to be understood first of all.
We have already adverted to the winds of change in thought
among the members of the polity relating to dissolution of
marriage by mutual consent. With that background in mind the
statutory provisions have to be understood. Subject to
safeguards/conditions the concept of divorce by mutual consent
on joint application of the spouses has been accepted by the
legislature by these provisions. There is no dispute now before
us that the following are the essential non-negotiable conditions
precedent insisted by law:
A. Solemnisation of marriage.
B. Mutual agreement of the spouses that the marriage
should be dissolved.C. Spouses must have been living separately for the
specified period of one year/two years prior to the
presentation of the application.D. Spouses have not been able to live together during this
period.Mat. Appeal No. 633/08 -: 8 :-
7. On these essential pre-requisites, there is no dispute
after detailed discussions at the Bar. We must mention that an
attempt was made initially to contend that conditions A and B
along with either C or D above alone can be reckoned to be the
essential pre-conditions. That contention cannot obviously be
accepted. Going by the plain language of the statutory provision
with due regard to the rules of grammar and semantics as also
the legislative objectives, such a contention is found to be
unacceptable. As no counsel has pressed that contention after
elaborate discussions at the Bar, we find it unnecessary to advert
to that contention in any greater detail.
8. We now come to the identical sub-section (2) in the
above statutory provisions. It demands that there must be a
mandatory minimum waiting period of six months after the filing
of the petition before court. The court can take up the petition
for its decision only after such period of waiting. The first
motion is the filing of the joint application for divorce on the
basis of mutual consent. Please note that the law mandates that
the petition can be filed only after pre-conditions A, B, C and D
above are satisfied. Even such a couple, who have filed the
application after satisfying conditions A, B, C and D, can get a
Mat. Appeal No. 633/08 -: 9 :-
decree for divorce by mutual consent only after sub-section (2) is
complied with. The statutory purpose appears to be very clear
and obvious. Pre-conditions A, B, C and D must simultaneously
co-exist. The joint application must then be made. After making
the application, the law wants the spouses to ponder over,
consider, evaluate and contemplate the consequences of the
journey on which they have embarked. The period of minimum
six to maximum 18 months is the period of mandatory re-
consideration, re-evaluation, re-assessment and contemplation
prescribed by the legislature for the spouses to take the crucial
decision. There is an underlying assumption that the dissolution
of marriage even by mutual consent is too serious a matter to be
left to the instant decision of even the most educated, competent
and sober persons in the community. There is an assumption
that such an important decision deserves to be thought over and
slept over for a fairly long minimum period of time. The
provisions in sub-section (2) reflect the attitude of the polity and
their representative legislature to marriage, its solemnity and
the need for serious and deep contemplation before the spouses
take the final decision to terminate the marital tie even by
mutual consent. This decision of moment affecting their lives as
Mat. Appeal No. 633/08 -: 10 :-
well as their close relatives and off springs, the legislature
mandates, cannot be taken and confirmed by the parties and
acted upon by a court without reasonable care, caution,
consideration and contemplation. The legislature in its wisdom
has hence mandated that such consideration must be there for a
minimum period of six months after making the initial
motion/application. The cautious approach prescribed by the
legislature is part of the culture and civilization of the polity.
Dissolution of marriage even by mutual consent, the legislature
appears to have realised, is too important a decision affecting
not only the spouses but the community as a whole that the
parties must be compelled to duly contemplate the issue for a
minimum prescribed period of time before final plunge is made.
9. To us, the legislative mandate appears to be loud, clear
and eloquent. If conditions A, B, C and D above co-exist, the
spouses can make the application under Sec.13B of the Hindu
Marriage Act, Sec.10A of the Divorce Act or Sec.28 of the
Special Marriage Act for divorce by mutual consent. Then, after
filing such petition the spouses must sit back and contemplate.
They must consider deeply and anxiously whether they should
stick to their decision to seek divorce by mutual consent. If
Mat. Appeal No. 633/08 -: 11 :-
after six months, they find themselves steadfast and firm in their
decision, they can make the second motion before court. The
court will then, and then alone, accept and act upon the decision
of the spouses. The court will not accept their decision earlier.
Conditions A, B, C and D must co-exist before the application.
After making the application, serious contemplation must be
made which contemplation must be given for a period of at least
six months.
10. Is the provisions of sub-section (2) mandatory or
directory? If it were not mandatory and can be reckoned as only
directory, certainly the courts can be said to have a discretion
which discretion can be invoked to waive the same in
appropriate cases. The approach that we have made indicated
above leaves not a trace of doubt in our mind that the provision
is mandatory. Go by the purpose sought to be achieved or go by
the language employed by the legislature, the conclusion to us is
inescapable that the provision is mandatory. The fact that the
parties have been living separately for a longer period than the
minimum prescribed under condition C above; that they, who are
educated and competent, have taken an informed decision to
seek divorce by mutual consent or that they have been fighting
Mat. Appeal No. 633/08 -: 12 :-
each other and litigating for a long period of time are all,
according to us, irrelevant while considering the play of sub-
section (2) as all that can only justify their initial decision and
consequent application to get the marriage dissolved by mutual
consent. Sub-section (2), according to us, mandates
unambiguously that after the decision under sub-section (1) is
taken and the petition is filed the spouses have to wait for a
minimum period of six months in contemplation. The anxiety of
the system, and the culture and civilization which the system
represents, to avoid the trauma of a divorce if possible is
reflected eminently in sub-section (2). We have no hesitation to
agree that sub-section (2) is mandatory and not merely directory.
11. Even hard cases should not persuade a court to lay
down bad law. The court cannot adopt an attitude in derogation
of the legislative wisdom that a wise decision regarding
dissolution of marriage by mutual consent can be taken by the
parties only after they contemplate the pros and cons for a
minimum period of six months after making the initial
motion/application for divorce on the ground of mutual consent
under sub-section (1).
12. There is one more angle from which the question has
Mat. Appeal No. 633/08 -: 13 :-
to be looked at. Sub-section (2) clearly suggests that if spouses
or either spouse chooses not to make a subsequent motion after
six months and within a period of 18 months, the petition lapses
and shall meet the fate of dismissal. The consent for divorce by
mutual consent must manifest when the application is made
under sub-section (1) and it must continue till the second motion
is made within the stipulated period – “after six months before
the expiry of 18 months”. This implies and declares that spouses
or either of them can withdraw the consent within the period of
mandatory contemplation (six to 18 months). This means
further that the law concedes to the parties the option and
liberty, notwithstanding the fact that they have made the initial
application, to withdraw the consent for dissolution of marriage
together or unilaterally till the period of six months or 18 months
as the case may be, has elapsed. If that period is dispensed with
and waived it would virtually stultify and frustrate the statutory
scheme of giving option to a party who has initially consented to
a divorce to alter his/her stand and refuse to agree for
dissolution by mutual consent. The very real option given by the
legislature to a party who has made the application to withdraw
consent will lose all its sheen and meaning if such period were
Mat. Appeal No. 633/08 -: 14 :-
waived and decree for dissolution by mutual consent is granted
before the elapse of the period of 6 months. That cannot
obviously be the law.
13. This would work out great prejudice and unnecessary
delay, it is urged. How? We queried. Parties will have to wait
unnecessarily for six months, it is argued. That waiting for six
months cannot be described by a court to be unnecessary as that
is the period fixed by the legislature in its wisdom to compel the
parties to reflect and contemplate. How can the said minimum
period of six months be held to be unnecessary by a court? This
waiting for the period of six months cannot be stated to result in
undeserved prejudice also. It may appear to them to be
unnecessary and causing prejudice. But the legislative mandate
is that six months waiting is not unnecessary; but essential and
necessary for the spouses to realise themselves, to discover
themselves and to confirm their initial decision after
contemplation if they choose. By no stretch of imagination can
such waiting be held to be unnecessary or causing prejudice.
To describe or reckon the said period of waiting as unnecessary
and causing prejudice is to simply question the wisdom of the
legislature on a civilisational and cultural aspect – regarding
Mat. Appeal No. 633/08 -: 15 :-
solemnity of marriage and the need/option to dissolve such
marriage by mutual consent when no other reason is shown to
exist in law justifying such dissolution of the solemn institution of
marriage. No court can commit the indiscretion of questioning
the wisdom of the legislature, within the area of its legislative
competence.
14. We hence have no hesitation whatsoever to agree, by
ascertaining and appreciation of the legislative object and
purpose as also by the fundamental analysis of the statutory
provision which is expressed in plain language that the
stipulations of sub-section (2) are mandatory and no court can
waive the statutory period except the apex court which under
Art.142 of the Constitution can act even beyond the ordinary law
in order to achieve complete justice in the peculiar facts of a
given case.
15. We shall now look at the precedents. We need only
refer to the decisions. As we shall later explain, it does not
appear to be necessary to us to delve deeper into these
precedents in the light of the binding law declared by the
Supreme Court subsequently. In the following decisions, the
courts appear to have waived the waiting periods holding that
Mat. Appeal No. 633/08 -: 16 :-
the interests of justice demand such waiving and dispensing with
the period of waiting. The following decisions of the Kerala
High Court appear to be relevant on this aspect:
1. Sreelatha v. Deepthy Kumar (1998 (1) KLT 195 (DB))
2. Dr. M.G. Viji v. P.T. Omana (1998 (2) KLJ 446 (DB))
3. Manojakumari v Bhasi (1998 (2) KLT 858 (DB))
4. Dr.P.B. Prasad v. Deepthi (1999 (2) KLJ 520 (Single
Bench))5. Mary Mathew v. State of Kerala (2002 (1) KLT 98
(Single Bench))We may incidentally note that the Division Benches referred
above though they opined that the period six months can be
dispensed with had no occasion to delve deeper into the question
to decide whether the provisions are mandatory or directory or
the scheme of the statutory provision.
16. We do further note that some other High Courts have
also taken the view that the period of waiting can be waived in
the interests of justice. Reference can be made to the following
decisions:
1. K. Thiruvengadam & Another V. Nil (AIR 2008
Madras 76 (Single Bench))2. Girdhari Maheshwari v. Nil (AIR 2009 Rajasthan 38
(DB))Mat. Appeal No. 633/08 -: 17 :-
3. Sudershan Ram Bhasin (AIR 2002 (1) HLR Punjab &
Haryana 270 (Single Bench))4. Preetha Nair v. Gopkumar (AIR 2001 (2) HLR Madhya
Pradesh 370 (Single Bench))5. In Re. Grandhi Venkata Chitti Abbai (AIR 1999
Andhra Pradesh 91 (Single Bench))6. Smt. Roopa Reddy v. Prabhakar Reddy (AIR 1994
Karnataka 12 (DB))7. Suresh Kumar Batra v. Varsha Batra (1994 (2) HLR
P & H 510 (Single Bench)8. Hanamappa Chetrappa Koppal & Another v. Nil
(1991 (2) HLR Karnataka 211 (Single Bench)9. Dr. Dhiran Harilal Garasia v. N. Mansu (AIR 1988
Gujarat 159 (Single Bench)10. Jarnail Kaur v. Bant Singh (1987 (1) HLR P & H 75
(Single Bench)11. K. Omprakash v. K. Nalini (AIR 1986 AP 167 (DB))
17. The Kerala High Court, at least, in three decisions
appears to have taken the view that such dispensing with the
waiting period is not permissible and the spouses or either
spouse shall have the option to withdraw the consent within the
stipulated minimum period of six months. Those decisions are:
1. K.I. Mohanan v. Smt. Jeejabai (1986 KLJ 833 (DB))
2. K.K. Anirudhan v. T. Prasanna Kumari (1989 (1)
HLR Kerala 682 (Single Bench))Mat. Appeal No. 633/08 -: 18 :-
3. Rekharani v. Prabhu (2007 (3) KLT 917 (DB))
18. This view that the period of waiting cannot be waived,
we find, has been taken by other High Courts also. We refer to
three such decisions below:
1. Gautam Basu v. Nina Basu (1991 (2) HLR Calcutta
459 (DB))2. Mohinder Pal Kaur v. Gurmit Singh (2002 (1) HLR
P & H 537 (Single Bench))3. Principal Judge, Family Court, Nagpur v. Nil (AIR
2009 Bombay 12 (DB))19. In the light of the conflicting views, we may have taken
a decision to refer the question to the Full Bench under Sec.4 of
the Kerala High Court Act. But we find that the decision of the
Supreme Court in Anil Kumar Jain v. Maya Jain (2009 (12)
SCALE 115) is available now accepting the above view reasoned
by us to confirm that the period of waiting cannot be dispensed
with. After considering the apparent conflict of views, the two
Judge Bench of the Supreme Court expressed itself in the
following words in paras-16,17 and 18:
“16. Although, the decision rendered
in Sureshta Devi (supra) was referred to
in the decision rendered in Asokh Hurra’s
case (supra) and it was observed therein
Mat. Appeal No. 633/08 -: 19 :-
that the said decision possibly required
reconsideration in an appropriate case,
none of the other cases has dealt with the
question which arose in Sureshta Devi’s
case (supra), namely, whether in a
proceeding under Section 13-B of the
Hindu Marriage Act, consent of the
parties was required to subsist till a final
decree was passed on the petition. 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. 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
Mat. Appeal No. 633/08 -: 20 :-
divorce either under Section 13 or Section
13-B of the Hindu Marriage Act, 1955.
17. 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 Sections 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 whether 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
Mat. Appeal No. 633/08 -: 21 :-
grounds not provided for in Section 13 and
13-B of the Hindu Marriage Act, 1955.
18. The second proposition is that
although the Supreme Court can, in
exercise of its extraordinary powers under
Article 142 of the Constitution, convert a
proceeding under Section 13 of the Hindu
Marriage Act, 1955 into one under Section
13-B and pass a decree for mutual divorce,
without waiting for the statutory period of
six months, none of the other Courts can
exercise such powers. The other Courts
are not competent to pass a decree for
mutual divorce if one of the consenting
parties withdraws his/her consent before
the decree is passed. Under the existing
laws, the consent given by the parties at
the time of filing of the joint petition for
divorce by mutual consent has to subsist
till the second stage when the petition
comes up for orders and a decree for
divorce is finally passed and it is only the
Supreme Court, which, in exercise of its
extraordinary powers under Article 142 of
the Constitution, can pass orders to do
complete justice to the parties.”
(emphasis supplied)
Mat. Appeal No. 633/08 -: 22 :-
20. Irretrievable break down of marriage as accepted by
both the spouses who filed the application for dissolution of
marriage by mutual consent cannot also persuade the courts to
dispense with or waive the mandatory period of
waiting/contemplation. An argument that the Supreme Court
was not considering exactly the same question – play of sub-
section (2) of Sec.13B of the Hindu Marriage Act and Sec.10A(2)
of the Divorce Act is irrelevant as even obiter of the Supreme
Court – when the law is declared clearly must bind this Court.
More over the Supreme Court was considering the question as to
which court under what circumstance can reckon irretrievable
break down of marriage as a relevant ground and for what
purpose. The Supreme Court has expressed clearly that only
the Supreme Court acting under Art.142 of the Constitution can
take into consideration the ground of irretrievable break down of
marriage which is not accepted and recognized by law of the
land even now as a ground for divorce. For the purpose of
granting reliefs including the relief of dispensing with/waving
the period of waiting under Sec.13B of the Hindu Marriage Act
and Sec.10A of the Divorce Act, the fact of irretrievable break
down of marriage cannot be taken into reckoning by other
Mat. Appeal No. 633/08 -: 23 :-
courts.
21. The fact that the Supreme Court in exercise of its
powers under Art.142 of the Constitution has chosen to grant
reliefs to parties in the cases pending before them – including
the relief of dispensing with the period of waiting under Sec.13B
(2) of the Hindu Marriage Act/Sec.10A(2) of the Divorce Act
cannot now be reckoned as observations clothing the Family
Courts, District Courts and the High Courts with authority to
ignore the mandatory provisions of sub-section (2) and dispense
with the period of waiting. The statement of the Supreme Court
in para-17 that neither the civil courts nor even the High Courts
can therefore pass orders before the period prescribed under the
relevant provisions of the Act or on the ground not provided for
in Sec.13 and Sec.13B of the Hindu Marriage Act is in this
context crucial and vital.
22. We may, in these circumstances summarise the law
and state that not only conditions A, B, C and D below; but
condition E below also are mandatory requirements that must all
co-exist before the court’s power under Sec.13B of the Hindu
Marriage Act, Sec.10A of the Divorce Act and Sec.28 of the
Special Marriage Act to pass the decree for dissolution on the
Mat. Appeal No. 633/08 -: 24 :-
basis of a joint application for divorce on mutual consent is
invoked:
A. Solemnisation of marriage.
B. The mutual agreement of the spouses that the
marriage should be dissolved.
C. That the spouses have been living separately for the
specified period of one year/two years prior to the
presentation of the application.D. They have not been able to live together during this
period; andE. Minimum period of six months and maximum period
of 18 months has elapsed from the date on which the
application for divorce under Sec.13B of the Hindu
Marriage Act and Sec.10A of the Divorce Act is filed
and the spouses have made the second motion for
dissolution thereafter.
23. Having so understood the law we shall now come back
to the specific facts of the instant case.
24. Marriage between the parties had admittedly taken
place on 21/1/01. A child was born in the wed-lock on 27/12/01.
The spouses started residing separately on 29/10/06. On 4/2/08
the husband filed an application for divorce on the ground of
marital contumaciousness under Sec.13 of the Hindu Marriage
Act. Summons was issued on 10/3/08. The matter was posted
for appearance to 30/4/08. Respondent entered appearance.
Mat. Appeal No. 633/08 -: 25 :-
Parties were referred for counselling. The case was posted to
16/7/08. In the meantime, the matter came up for hearing in
connection with petitions on 6/5/08, 15/5/08, 22/5/08, 30/5/08,
31/5/08, 3/6//08, 7/6/08 and 19/7/08. In the meantime a joint
application for divorce under Sec.13B was filed jointly by the
parties on 30/5/08. The records show that while the said
application – I.A.No.2275/08 filed under Sec.13B of the Hindu
Marriage Act was pending, the matter came up for hearing on
31/5/08, 3/6/08, 7/6/08 and 19/7/08. It was thereafter that the
impugned order dissolving the marriage under Sec.13B was
passed on 26/7/08. On 7/6/08 after the joint application under
Sec.13B was filed, there is a noting in the order sheet as follows:
"Not settled. R1 (the appellant
herein) is withdrawing consent.
Counselling terminated. For orders.”
It is thereafter that the impugned order dissolving the marriage
under Sec.13B was passed on 26/7/08.
25. After the impugned order was passed on 26/7/08, the
petitioner has rushed to this Court to file this appeal on 27/8/08.
Even if we reckon the joint application under Sec.13B to have
Mat. Appeal No. 633/08 -: 26 :-
been properly instituted on 30/5/08, we have unmistakable
indications to show that on 7/6/08 the appellant had withdrawn
her consent. She having come to this Court with this appeal on
27/8/08 disputing her consent we have unassailable indications
to show that within the period of six months she had
contemplated and had taken a decision against divorce by
mutual consent under Sec.13B.
26. We must further note that there is no specific
application by the parties to dispense with the period of waiting
under Sec.13B(2). The view we have already taken is that even
if there be such an application to dispense with the period of
waiting, the court has no jurisdiction to waive/dispense with the
said period.
27. The conclusion is inevitable in these circumstances
that the impugned order passed under Sec.13B of the Hindu
Marriage Act is not valid, correct or proper. The same calls for
interference. The challenge succeeds.
28. The question arises as to what further orders are liable
to be passed. We have already taken the view that the order
passed under Sec.13B on the basis of I.A.No.2275/08 filed in
O.P.No.146/08 is not valid and proper. But it remains that
Mat. Appeal No. 633/08 -: 27 :-
O.P.No.146/08 has to be disposed of in accordance with law.
Appropriate directions can be issued.
29. In the result:
(a) This appeal is allowed.
(b) The impugned order passed under Sec.13B of the
Hindu Marriage Act dissolving the marriage between the
appellant and the 1st respondent by mutual consent is set aside.
(c) The appellant having withdrawn her consent, I.A.
No.2275/08 is dismissed.
(d) The court below is directed to dispose of O.P.No.146/08
afresh in accordance with law as expeditiously as possible.
(e) The Registry shall forth with send back the records to
the court below.
(f) The parties shall appear before the Family Court on
5/4/2010 to continue the proceedings.
Sd/-
R. BASANT
(Judge)
Sd/-
M.C. HARI RANI
(Judge)
Nan/ //true copy// P.S. to Judge