JUDGMENT
Ranjit Singh, J.
1. Alleging that she was tricked by her husband, Ranjna has filed this first appeal impugning the decree of divorce granted by Addl.District Judge, Sonepat on the ground of mutual consent.
2. The facts, as noticeable from the brief order ending this matrimonial alliance, are that a petition under Section 13 of the Hindu Marriage Act was filed for dissolving the marriage between the appellant and her husband Anil Kumar on the ground of mutual consent on 30.7.2004. On that very day, the statements of the husband and wife were recorded to the effect that due to their different temperaments, they could not adjust as husband and wife and then they accordingly had decided to dissolve their marriage. On an application filed, the case was again taken up on 21.8.2004 when this was put up before a Lok Adalat. The statements of parties were recorded on this date. It is seen from the statements that on request of both the parties, the file was put up before Lok Adalat where they again effected compromise. It is noticed that both the husband and wife made a statement that they were not able to adjust themselves as husband and wife due to different temperaments and there was no scope for their re-union. It was accordingly stated by them that no purpose shall be served for further waiting. They had also disclosed that they had settled everything regarding giving and taking and in regard to custody of one child which was to remain with the husband, who was responsible to maintain her. Accordingly, it was stated before the President Lok Adalat that the waiting period be exempted and the marriage be dissolved by mutual consent. Their photographs were also taken on record. Same day, the case was taken up by Shri J.S. Jangra, Addl.District Judge, Sonepat. The court while referring to the case of Navjot Kaur v. Balwinder Singh 2003(1) Civil Court Cases 204 condoned the waiting period and allowed the petition and dissolved the marriage by way of mutual consent leaving the parties to bear their own costs. This order is now impugned by the wife by way of above-noted first appeal.
3. The marriage between the husband and wife was solemnised on 19.10.2001. A female child was born out of this wedlock on 20.10.2002. The petition under Section 13-B of the Hindu Marriage Act came to be filed on 30.7.2004 as already noticed and was fixed for 2.2.2005. This divorce petition, however, was taken up for hearing on 21.8.2004 by Lok Adalat on an application dated 19.8.2004 filed by the couple. On same day, as already noticed, the decree of divorce was granted on ground of mutual consent by waiving the waiting period as laid down in the Statute.
4. In the instant appeal filed, the appellant has disclosed that she lost her father when she was 2/3 years old. Her mother is a Class-IV employee and she was married by her maternal uncle. The appellant claims that she has been exploited by her husband in getting this divorce on the ground of mutual consent. She further claims that she was kept in the house till date of passing of the decree and thereafter the respondent turned her out from the house after snatching her daughter. This left her bewildered and only then she realised that she has been duped and defrauded in getting divorce. Relying upon the contents of Section 13-B of the Hindu Marriage Act, it is alleged that conditions contained therein are essential to be fulfilled for dissolution of marriage under the Section and these are as follows:
i) The parties are living separately for over one year;
ii) They have not been able to live together;
iii) They have mutually agreed for dissolution;
iv) The consent of the parties is free.
5. It is further alleged that the appellant was made to sign on blank papers and thereafter divorce petition on the ground of mutual consent was drafted. These blank signed papers were also used for moving an application before Lok Adalat. Appellant has further brought out that she was brought to the court premises at Sonepat and made to sign certain documents on the basis that she would be able to get certain service benefits. She has further alleged that every article of dowry and Istridhan is still lying in the house of the respondents, which includes the jewellery and has accordingly impugned the order granting divorce under Section 13-B of the Act.
6. It is contended that the consent as envisaged under Section 13-B of the Hindu Marriage Act was not existing in this case when the joint petition was filed and that statutory period of waiting could not have been waived even if it could be assumed that parties have so wished or desired. The appellant has also claimed that even after the grant of decree for divorce, she has lived with her husband.
7. Notice of motion was issued in this case on 23.11.2004 and the operation of the impugned judgment was stayed. On 21.11.2005, the appeal was admitted. The appellant was allowed maintenance pendente lite at the rate of Rs. 400/-per month besides litigation expenses of Rs. 10,000/-. In between, the respondent- husband filed an application expressing his financial inability to pay litigation expenses as well as the maintenance pendente lite. This application, however, was dismissed. The respondent also moved C.M. No. 983-CII of 2006 praying for deciding the appeal early. In this background, the appeal was taken up for consideration by this Court. Respondent-husband also offered that he was ready to pay an amount of Rs. one lac as full and final settlement if the appellant-wife was willing to withdraw the appeal and accept the decree of divorce passed by the trial court on the basis of mutual consent. This offer was accepted by the counsel representing the appellant-wife. Respondent sought adjournment to arrange the necessary payment and so the parties were summoned to be present. This happened on 28.3.2006. However, when the parties appeared on 24.4.2006, the appellant-wife prayed for some more time to think over the matter in order to comply with the order dated 28.3.2006. On 18.7.2006, the appellant resiled from the undertaking given on her behalf by her counsel as noticed in order dated 28.3.2006. The counsel representing her, however, still sought time to advise the appellant. To be fair to the respondent, it may need a notice that he had brought a draft of Rs. one lac on 18.7.2006. The draft was returned to the respondent and case was adjourned to 28.7.2006. The case has been subsequently adjourned and was ordered to be put up for disposal when the negotiations failed. Vide order dated 25.7.2007 the appeal was listed for hearing on 3.8.2007 and parties were directed to be present on the adjourned date. On that day, again the case was adjourned to 12.10.2007 with direction to the respondent to clear the litigation expenses and the maintenance pendente lite as has been directed to be paid by the Division Bench at the time of admitting the appeal. The respondent took time on different dates to comply with this direction passed by this Court on 3.8.2007.
8. When the case came up for hearing on 9.1.2008, the parties were present before the court. They were heard. Respondent is appearing in person. In fact very early in the morning at 10.00 A.M., respondent appeared before the court to submit that his case is pending final adjudication and may be taken up for hearing. While hearing the appeal, the parties were confronted with the background and the facts as noticed. The wife expressed her willingness to go with the husband while continuously maintaining that she had been tricked by her husband in getting this decree of divorce on the ground of mutual consent. The husband, however, was equally reluctant in accepting the offer of the wife and maintained that the appellant-wife had mutually agreed to end this marriage as it was not working because of temperamental differences between them. Despite queries, the husband, however, could not disclose these temperamental differences, which were the cause of trouble between them. He, however, was loud in his approach in saying that the wife had left a two months old daughter and has never bothered to look back which he is raring. On the other hand, wife and her counsel submit with equal vehemence that appellant was turned out of her matrimonial house and has not been allowed to have an access to the child. She appeared rather sore in conveying her grievances to the court and went to the extent of complaining that she was not receiving fair treatment. She even expressed herself to say that she was willing to get affidavits from the locality or of the counsel to say that she had never engaged any counsel and had been tricked by her husband in obtaining this decree of divorce on the ground of mutual consent. Finding that the parties were really at loggerhead with no scope of husband relenting to take the wife with him and insisting on separation and decision of the appeal, the appeal is heard finally.
9. At the very outset, the respondent was asked if he had brought the requisite amount, which was due as required. He initially evaded the same with a request that the main case be decided. He later took out a demand draft from his pocket to the tune of Rs. 25,600/-which was the amount due as maintenance pendente lite and the litigation expenses. This may tend to reflect his overall attitude. Despite carrying a draft in his pocket, he was wanting to avoid payment. He otherwise could not say anything except to urge that there is no ground to interfere in the appeal.
10. Mr. N.C. Kinra, representing the appellant, however, very fairly refer to the affidavit filed by the appellant wherein she had explained the reasons which had prompted her to resile from the undertaking given on her behalf after having accepted the proposal before the court to agree to dissolution of this marriage on payment of Rs. one lac. It may be noticed that the counsel had given an undertaking on behalf of the appellant on being so instructed. The appellant in her affidavit dated 19.3.2006 has specifically stated that she had conveyed her willingness to settle the matter by taking Rs. one lac. She has further explained that after giving her thought to the matter with her mother and other relations, she decided to settle with the respondent instead of accepting Rs. one lac. It is in this background that she made a statement before the court that she was willing to go back with her husband. Since that is not acceptable to the husband, the appeal would now require a decision.
11. Mr. Kinra has mainly contended that waiving off the waiting period is mandatory and cannot be allowed as done in this case. In this regard, he has placed strong reliance on the case of Charanjit Singh Mann v. Neelam Mann . While noticing the objects and reasons for which the Section 13-B was incorporated, Division Bench of this Court in this case observed as under:
The Objects and Reasons for passing the Act No. 68 of 1976 whereby Section 13-B was incorporated, indicate that the provision for divorce by mutual consent was intended more or less on the lines of Section 28 of the Special Marriages Act, but having felt that once the parties have chosen to move the Court for divorce by mutual consent, it was not necessary to make them wait for a further period of one year to obtain the relief, that the period of one year was decided to be reduced to 6 months.
12. The Court further noticed that Section 13-B enables the court to grant divorce by mutual consent only when it is satisfied that: (i) the marriage had been solemnized between the parties; (ii) the parties have been living separately for more than one year before presenting the petition; (iii) they were not able to live together at the time of presenting the petition and continued to live separately; (iv) they had mutually agreed to dissolve the marriage before or at the time the petition was presented; and (v) the contents of the petition are true and factually correct. Having said so, the court went on to observe that:
However, irrespective of existence of the above-stated grounds, Sub-section (2) of Section 13-B does not permit the Court to dissolve a marriage by mutual consent not earlier than 6 months after the date of presentation of the petition or later than the expiry of 18 months after such presentation. The legislature, in its wisdom, has consciously provided the minimum and maximum waiting period during which alone a decree for divorce by mutual consent can be passed. The apparent object behind providing this period is to allow time to the spouses to reconsider their decision and finally make up their mind. It also enables the Court to satisfy itself that the ‘consent’ is free from any extraneous influence and is also not tainted with any ‘collusion’ between the parties.
13. Mr. Kinra says that the order granting divorce by waiving the period of six months was not permissible and as such the impugned order cannot be allowed to sustain. A peculiar fact which may be noticed in the case of Charanjit Singh (supra) is that waiver was sought on the ground that the parties have already litigated for more than six months in the past and it was said that no useful purpose would be served by keeping the petition pending for another six months. On this aspect, the court held as under:
After a ruminated consideration of the point in issue, we are unable to persuade ourselves to agree with the learned Counsel for the appellant. The doctrine of `relation back’ being out of universal application, cannot be pressed into service to defeat a statutory provision or its object. The legislative scheme unfolds that occasion to observe the minimum and/or maximum waiting period envisaged under Sub-section (2) of Section 13-B of the Act would arise only when a joint petition in terms of Sub-section (1) thereof is presented before the Court. Thus, if the theory of ‘relate back’ is applied in such like cases then the ‘waiting period’ will precede the presentation of a joint petition. Such a consequence being totally alien and contrary to the legislative intendment behind the aforesaid provision, we reject the appellant’s contention that on conversion of his petition under Section 10 into under Section 13-B of the Act, the joint petition shall be deemed to have been filed on 15.4.1998.
14. No doubt, in some of the cases this Court and other High courts have held that waiving off a period of six months can be allowed, but all such cases appear to have been decided in peculiar facts and circumstances on those cases alone. In Amarjit Kaur v. Bhupinder Singh 2007(3) Civil Court Cases 229 this Court allowed the waiving off period of six months by observing that the parties were litigating on the criminal side since 2000 and matter was settled on intervention of panchayat by way of compromise, which led to parties agreeing to get divorce by mutual consent. In this background, waiting period was directed to be waived and the revision petition challenging the declining of the prayer of waiving off was allowed. As can be seen that there was no scope of consent having been obtained by any misrepresentation and in view of criminal litigation has been settled, there was no scope of reconsideration. Bombay High Court in a case reported as Sonali & Anr. v. NIL 2007(4) Civil Court Cases 489 allowed the waiving of period by saying that the court can do so in view of the exceptional hardships experienced by the parties. In this case, the High court found that decision taken by the parties was a matured and well considered one and was not arrived at by any external influence. The parties were found to be living separately since January, 2006 and accordingly this period was found sufficient for the parties to think and re-think and accordingly the statutory period of six months was directed to be waived off. In Amarjit Kaur v. Bhupinder Singh 2007(1) HLR 461 this Court allowed the waiving of period of six months. This again was a case where marriage was performed on 9.4.2000 and the parties were not able to reconcile. The marriage had totally broken down. No possibility of any reconciliation. Keeping the age of the parties in view, continuation of a sterile marriage was found deleterious effect on the prospects of the re-marriage of the parties and thus waiving off was permitted. Even in case of Smt. Krishna Khetarpal v. Satish Lal AIR 1987 P&H 191 this Court found that in appropriate cases the court can grant instant relief of divorce by waiving off six months period as laid down in Section 13-B(2) of the Hindu Marriage Act.
15. It is noticeable that in all such cases where waiving of statutory period has been permitted, some exceptional circumstances were noticed. It may be true that this six months period statutorily prescribed for divorce by mutual consent may have been waived off in some exceptional cases but it was on the facts and circumstances of these particular cases. Normally the parties are expected to wait for this statutory period as there can always be thinking or re-thinking which may prompt one party to opt out of this consent. The courts, as such, are required to decide the aspect of waiving off having regard to facts in each case. When the facts in this case are examined, these would not reveal any extra-ordinary circumstance or reason which could have prompted the court to waive this statutory period of six months wait. The reason given by the trial court in waiving this period statutorily required to be followed was that the parties have reached a compromise. As per the allegations of the appellant, she had continued to stay with respondent even after the decree of divorce. While issuing notice on the application for grant of divorce on mutual consent, the case was adjourned to give a cooling of period of six months to the respective parties. There are no special reasons available or noticed which had prompted both of them to file an application for hearing of the case by Lok Adalat only few days after it being presented before the matrimonial court. The appellant-wife complains that her signatures were obtained on blank papers which were utilised for filing this application. No doubt, she had appeared along with the respondent- husband before the Lok Adalat and on the same day, the decree of divorce was granted. To my mind, the Lok Adalat or the Matrimonial Court does not appear to have fully satisfied itself about the reasons for which this statutory wait period was required to be waived. An indication about the consent given by the wife may also be available from her action in accepting the offer of the husband by withdrawing the appeal on payment of Rs. one lac. Her wavering mind again came to the fore when she decided to join husband after re-consideration and thus resiled from this undertaking and commitment given on her behalf. She is faithfully stating that she gave undertaking but has reconsidered and after rethinking has a change of mind. This perhaps is a reason for which the legislature has provided a period of cooling off, even when provision has been made for grant of divorce by mutual consent. Any party to such a petition/application can rethink and re-decide. The appellant-wife on re-consideration find it more beneficial to continue with this marriage, which may also be for the sake of child which is in the custody of the respondent-husband. The action of the court in waiving of this period, as such, is not considered legally justified or in order. I am, thus, inclined to accept this appeal and would set-aside the order and so the decree of divorce granted in this case. The parties are left to bear their own costs.
16. The appeal is accordingly allowed.