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Smt. Chander Kanta vs Mohinder Partap Dogra on 19 February, 2003

Punjab-Haryana High Court
Smt. Chander Kanta vs Mohinder Partap Dogra on 19 February, 2003
Equivalent citations: AIR 2003 P H 255
Author: S Saron
Bench: S Saron


JUDGMENT

S.S. Saron, J.

1. The marriage between the parties to the present appeal was solemnized on 19-10-1985 at Adampur Doaba, according to Hindu rites and ceremonies. They lived together at Chandigarh for 5-6 months. No child was born out of this wedlock. Mohinder Partap Dogra respondent-husband filed a petition under Section 13 of the Hindu Marriage Act 1955 (hereinafter referred to as the Act) before the learned District Judge, Chandigarh for dissolution of the marriage between the parties on the ground that the appellant-wife after the solemnization of the marriage, treated him with cruelty. The said petition of the respondent-husband was allowed by the learned Additional District Judge. Chandigarh, vide his judgment and decree dated 25-2-1997. The appellant-wife filed this appeal under Section 28 of the Act, assailing the aforesaid judgment and decree.

2. On the last date of hearing i.e. 12-2-2003, in the presence of the parties the matter was discussed for settlement of the case by way of grant of divorce by mutual consent. It was adjourned for today in order to reach a consensus on the amount of lump sum payment or periodic payment as the case may be to the appellant-wife.

3. Today, the parties have filed a joint application under Order VI, Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the petition to convert it into a petition for divorce by mutual consent. The application is taken on record. The Registry to assign a number to the Civil Misc. for amendment. The amendment prayed for is allowed and the petition for divorce filed by the respondent-husband is converted by amendment to a petition for grant of divorce by mutual consent in terms of Section 13-B of the Act.

4. In the amended petition for divorce Mohinder Partap party No. 1 and Smt. Chander Kanta party No. 2 have stated that because of temperamental differences between them such a situation has reached where it is not possible for them to live as husband and wife. Besides, all disputes regarding dowry and permanent alimony stand settled and neither party shall claim any alimony from other in future and also any immovable property of each other.

5. The statements of the parties have been recorded.

6. Smt. Chander Kanta party No. 2 has received a sum of Rs. 50,000/- in cash today from her husband party No. 1. Besides, for the balance amount of Rs. 1,50,000/-party No. 1 Mohinder Partap has given post dated cheques of various dates as mentioned in the statement of the respective parties. The same have been accepted by party No. 2 wife as her full and final settlement of permanent maintenance and alimony. It is stated by the parties that they cannot pull along and pray that the marriage between them be dissolved by a decree of divorce by waiving period of six months.

7. I have heard learned counsel for the parties and with their assistance gone through the records of the case.

8. Both the counsel have contended that the marriage has completely and irretrievably broken down. Therefore, it would be just and expedient if the same is dissolved by a decree of divorce by mutual consent. They have further contended that the litigation between the parties has been pending since the filing of the petition for divorce, which was filed on 4-3-1996 and thereafter the appeal itself has been pending since 1997. Therefore, in the circumstances the waiting period of six months as provided by Section 13-B(2) of the Act be also waived.

9. The admitted position is that the parties lived as husband and wife only for a very brief period i.e. from 19-10-1985 to 31-3-1986 which works out to about six months only. Thereafter there has been no resumption of cohabitation rather there has been litigation between them. Now the parties have mutually decided to dissolve the marriage by a decree of divorce. The question that arises for consideration is whether the waiting period of six months as provided under Section 13-B(2) of the Act can be dispensed with. A Division Bench of this Court in Krishna Khetarpal v. Satish Lal, AIR 1987 Punjab and Har 191, held that if the circumstances warrant, the Matrimonial Court can dissolve a marriage by a decree of divorce between the two Hindus on the basis of compromise entered into between the parties during the pendency of the divorce petition without strictly following the procedure prescribed by Section 13-B(2) of the Act, but on satisfying itself of not only the requirements of Section 23(1)(c) of the Act, but also of the specifically applicable Section 23(1)(bb) of the Act. The ratio of the said judgment is that during the pendency of a petition the waiting period of six months can be waived where the parties had been litigating for quite sometime and having agreed to separate mutually, it would be futile to prolong their agony by waiting for a further period of six months before passing the decree of divorce. However, the Court is to satisfy itself that the requirement of Section 23(1)(bb) and (c) of the Act are complied with. Therefore, the provisions of Section 23(1)(bb) and (c) of the Act may be noticed which read as under :–

“23. Decree in proceedings.– (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that –

(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and

(c) the petition (not being a petition presented under Section (1) is not presented or prosecuted in collusion with the respondent.”

10. The perusal of the above shows that in any proceeding under the Act, if the Court is satisfied that when the divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence and that the petition has not been presented or prosecuted in collusion with the respondent.

11. In the case in hand, the parties stated on oath that they were entering into the settlement amongst themselves of their own free-will and desire and without any undue pressure or coercion from anybody. The parties have been litigating since 1996 and they have been living separately since 31-3-1986. Therefore, I am satisfied that the consent given by either of the party is not occasioned by force, fraud or undue influence. In the circumstances, the parties have hot colluded even with each other to file the present petition. Therefore, in my view, the waiting period of six months before passing a decree, in the facts and circumstances of the case can be safely dispensed with.

12. As regards the waiting period of six months, as contemplated by Section 13-B(2) of the Act, the case can be considered from another angle in the light of the judgment of a Division Bench of this Court in Arun Chawla v. Smt. Reena, 1997 (117) Pun LR 756 wherein it was held as follows :–

“The period of six months has to be counted from the date of the petition presented under Section 13-B(2) of the Act. Once an earlier application has been filed seeking conversion of the petition filed under Section 13 of the Act to under Section 13(2) (sic) 13-B of the Act and the said application is allowed, the result would be that by virtue of the said petition, which amounts to an amendment, the period of six months will be reckoned from the original date of filing of the application. In the present case, the litigation has been going on for the last more than 7 years. The said period contemplated under Section 13-B(2) of the Act has been expired since long. There are no chances of reconciliation between the parties. We are satisfied that there is no fraud that has been practised. There is no reason, thus, to refuse permission that marriage should be allowed to be dissolved by mutual consent.

13. The above judgment in Arun Chawla’s case (1997 (117) Pun LR 756) (supra) is also applicable to the facts of the present case. As already noticed above the petition for divorce was filed by Party No. 1 husband on 4-3-1996. Therefore, the conversion/amendment of the same now would relate back to its institution and the period of six months is to be reckoned from the original date of filing the petition i.e. 4-3-1996. The said period has indeed expired since long. Therefore, the waiting period of six months having been waived and in any case having already expired from the date of filing the original petition, the same does not come in the way for passing a decree for divorce by mutual consent especially when the parties are agreeable and pray for the same.

14. I am satisfied from the statements made by the parties and the submissions of their respective counsel that there is no chance of the parties living together. The marriage between them has completely and irretrievably broken down. They have been living separately since 31-3-1986 and litigation between them has also been pending since 1996. They have stated that they cannot pull along and have mutually agreed to dissolve the marriage. Therefore, it is just and proper that the marriage between the parties is dissolved by a decree of divorce by mutual consent. The party No. 1 Mohinder Partap shall remain bound by his undertaking made in Court regarding encashment of the post dated cheques and he is directed to ensure the due payment of the amount in respect of which the post dated cheques have been given.

15. Accordingly, the petition for grant of divorce by mutual consent is allowed and the marriage between the parties stands dissolved by a decree of divorce. The judgment and decree dated 25-2-1997 under appeal is modified and instead of grant of divorce on account of cruelty, the marriage between the parties shall stand dissolved by mutual consent in terms of Section 13(B)(1) of the Act.

The parties shall bear their own costs.

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