Himanshu Nagpal @APPELLANT@Hash Palak

Sandeep Sharma

By way of present appeal filed under S. 28 of the Hindu Marriage Act (hereinafter, ‘Act’), challenge has been laid to order dated 22.5.2018

passed by the learned District Judge, Kangra at Dharamshala in HMA Case No. 09/III/2018, whereby joint petition having been filed on behalf of the

appellant and respondent, under S. 13B(2) of the Act, for dissolution of marriage by a decree of divorce with mutual consent, came to be dismissed.

Briefly stated the facts, as emerge from the record are that the marriage between the parties was solemnized on 14.10.2016 at Budhamal Castle,

Palampur, Tehsil Palampur, District Kangra, H.P., as per Hindu rites and customs but they were not able to live together for long on account of

certain differences and as such, they, of their own volition and without there being any undue pressure, filed a joint petition under S. 13B(2) of the Act,

praying therein for dissolution of their marriage by way of decree of divorce with mutual consent. One of the parties i.e. appellant-husband, Himanshu

Nagpal, who resides abroad, executed a Special Power of Attorney authorizing his father, Shri Surya Prakash Nagpal, to move a joint petition under S.

13B of the Act, alongwith his wife, Palak Nagpal before the learned Court below, however, the fact remains that the learned Court below rejected the

petition vide impugned order dated 22.5.2018, on the ground of maintainability. Learned District Judge concluded that since the petition on behalf of

appellant was signed by his father, being his attorney, same could not be accepted. In the aforesaid background, parties have approached this court by

way of instant appeal, laying therein challenge to the aforesaid order passed by the learned District Judge, praying therein for dissolution of their

marriage by way of decree of divorce with mutual consent, after setting aside the impugned order passed by the court below.

Before adverting to the factual matrix of the case, it may be noticed that on the last date of hearing i.e. 6.11.2018, respondent-Palak, who had come

present with her father, categorically stated before this court that she has no objection in case prayer made in the petition is accepted and marriage

inter se parties is ordered to be dissolved with mutual consent, however, she had stated that before passing a decree of divorce, amount agreed to be

paid to her in terms of compromise, may be paid to her. On the last date of hearing, parties also placed on record, settlement deed, wherein appellant

has agreed to pay a sum of `8.00 Lakh as permanent alimony to his wife, Palak. Similarly, respondent also stated that she has received all the dowry

articles as per agreed terms and she has no claim against the appellant and she shall withdraw all the cases lodged by her against the appellant and/or

his family members.

Today, Ms. Palak (respondent), on oath, stated before this court that she has received a sum of `8.00 Lakh as per agreed terms towards full and

final settlement and now she has no claim against the appellant. She further stated that she shall be withdrawing all the case pending in various courts

of law, against the appellant as well as his family members, within a period of one week. She categorically stated before this court that she has no

objection in case prayer having been made in the instant appeal, which bears her signatures, is accepted and marriage inter se parties is ordered to be

dissolved by way of decree of divorce with mutual consent. Her statement is taken on record. The settlement deed is also made part of the record.

Now, the question, which remains to be determined in the instant proceedings by this court is, whether petition under S. 13B(2) under the signatures

of father of the appellant, being his attorney, is maintainable or not? Undisputedly, petition under S. 13B on behalf of the appellant has been signed by

his father being his attorney, whereas, respondent has signed the petition herself. Special Power of Attorney placed on record (available at page-23 of

the paper- book), which, otherwise, has not been disputed by the respondent, clearly suggests that the appellant has authorised his father to sign the

petition under S.13B of the Act on his behalf for grant of divorce by mutual consent from his wife, Ms. Palak. 6. S. 13B of the Act, provides that a

petition for dissolution of marriage by a decree of divorce can be presented to the District Court by both the parties to the marriage together on the

ground that they have been living separately for a period of one year or more and they have not been able to live together and they have mutually

agreed that their marriage be ordered to be dissolved on the motion of both the parties. Careful reading of S. 13B, does not suggest that personal

appearance of the parties seeking divorce by way of mutual consent is mandatory, rather, it has been specifically provided under S. 13B, that the

petition for dissolution of marriage by way of decree of divorce can be presented to the District Court by both the parties to the marriage together and

there is no specific condition/bar as such that such a petition can not be presented through attorney. There cannot be any dispute with regard to the

fact that at the time of considering prayer for grant of divorce, if any, under S. 13B, by way of mutual consent, court is required to record its

satisfaction about the consent in terms of provisions of the Act but appearance of both the parties or their consent can also be through their duly

constituted attorneys, especially when there is no specific bar contained under the Act, however, in the absence of parties, especially where attorneys

appear on behalf of the parties, courts are required to be more cautious and vigilant, while recording their satisfaction about the consent. But definitely,

petition for dissolution of marriage by way of decree of divorce with mutual consent cannot be rejected merely on the ground that one of the parties

did not appear in person.

Reliance is placed on a judgment delivered by the Andhra Pradesh High Court (D.B) in Padmakiran Rao (Mrs.) Versus B. Venkateramana Rao,

1996(2) HLR 271, wherein it has been held that the word 'hearing' is often used in a broad sense which need not always mean personal hearing. The

High Court held as under: “2. Relying on the wording - ""after hearing the parties"" in Sub-section (2) of Section 13-B, the learned Subordinate Judge

took the view that both the parties to the marriage should necessarily be present in the Court for examination and the filing of affidavit will not be a

substitute for that requirement. The learned Judge observed that unless the parties are personally present, it would be difficult for the Court to assess

whether they have changed their mind since the date of filing the petition. We do not think that this is a correct view to be taken. 'Hearing' does not

necessarily mean that both parties have to be examined. The word 'hearing' is often used in a broad sense which need not always mean personal

hearing. In any case, the evidence of one of the parties i.e., the appellant herein was recorded by the Court. Thus, even if the word 'hearing' is

construed in a literal sense that requirement must be deemed to have been satisfied in the instant case in view of the examination of the appellant. On

the husband's side, there is evidence in the form of an affidavit which can be legitimately taken into account in view of Order XIX Rule 1 C.P.C. It is

not as if the affidavit has been doubted or the other party wanted to cross-examine the deponent of the affidavit. When there are no suspicious

circumstances or any particular reason to think that the averments in the affidavit may not be true, there is absolutely no reason why the Court should

not act on the affidavit filed by one of the parties. The learned Judge fell into error of law in observing that he cannot look into the affidavit at all.

There is also a valid reason for non-attendance of the respondent in the Court. In the circumstances, the order of the lower Court is set aside and the

appeal is allowed. We declare that the marriage between the parties shall stand dissolved with effect from the date of this judgment and a decree for

divorce be passed. We make no order as to costs.â€​

Reliance is also placed upon Navdeep Kaur Vs. Maninder Singh Ahluwalia 2010(2) Civil Court Cases 383 (P&H), wherein the High Court of

Punjab and Haryana has held as under: “8. It is a case in which the parties lived together only for a period of three months. After the marriage on

7.1.2007, the divorce petition by way of mutual consent was filed on 6.1.2009 meaning thereby that admittedly the parties were residing separately for

the last more than one year at the time of presentation of petition. It is also not in dispute that the respondent husband had gone abroad and he had not

come back since then. The petition was filed on behalf of the husband by his father as his attorney. Even on the first date of hearing, it is the joint

statement of the father of the husband respondent, Dharam Singh which was recorded as his attorney and the appellant Navdeep Kaur. The same is

extracted below:â€" “I, Dharam Singh, is the GPA of my son Mainder Singh Ahluwalia, vide GPA, the copy of which is Ex. PA (Original seen and

returned). Our marriage of the parties was solemnised on 07-01-2007 at Chandigarh as per Sikh rites and ceremonies. On account of differences of

temperament, it was not possible to live together as husband and wife and they are living separately since 08-04-2007. Out of this wed lock, no child

was born. The matter was amicably settled between the parties and a compromise deed is Ex. PB and as per the compromise, petitioner No. 1 will

pay a sum of Rs. 2,35,000/- to petitioner No. 2 and as per settlement, a Demand draft of Rs. 1,35,000/- No. 407218. dated 22.12.2008, drawn on

SBOP, payable at Chandigarh, has been handed over to petitioner No. 2 and remaining amount of Rs. 1,00,000/-will be paid on the next date of

hearing and petitioner No. 2 withdraw all the criminal cases filed by her against the petitioner No. 1 and his family and in future will not file any sort of

litigation against them and will not claim any maintenance from petitioner No. 1 in future for herself. The contents mentioned in the petition are correct

and are signed by us. The marriage may kindly be dissolved.†11. The issue which arises for consideration before this court is as to whether it is

mandatory for the parties to appear in person in court at the time of filing of petition for divorce by way of mutual consent and also at the time of

second motion or the attorney can be authorised to appear? 18. A perusal of the impugned judgment of the learned court below shows that the learned

court below dismissed the petition on the ground that the parties had not appeared in person. It had not recorded any finding as regards the petition

being not bonafide or that the averments made in the petition were not true and correct and further that the consent of either of the parties had been

obtained by force, fraud or undue influence which was sine-qua-non for consideration of a petition for divorce by way of mutual consent.

In view of the enunciation of law, as referred to above and also what is provided in Order 3 CPC, in my opinion, once the court is not doubting the

genuineness of the contents stated in the petition for divorce by way of mutual consent, and one of the parties are represented by an attorney, who is

none else than the father of the respondent-husband, who has fiduciary relations with the respondent/husband and cannot be expected to act against

the interest of his son, such a petition cannot be rejected merely on the ground that one of the parties did not appear in person. The provisions of

Section 13-B of the Act cannot be read to mean that personal appearance of the parties is mandatory. Procedural law is subservient to justice.

Appearance of parties would include appearance through duly constituted attorneys. The paramount thing which is required to be considered by the

learned court below is the correctness of the contents of the petition filed and also to see that consent of either of the parties has not been obtained by

way of force, fraud or undue influence. Parties are not required to be called in court only to see their faces. However, in the absence of the parties,

where the attorney appears, the courts have to be more cautious and vigilant in recording its satisfaction about the consent in terms of the provisions

of the Act. It may depend on the facts of a case, considering who is appearing as attorney. 9. In the aforesaid judgment, High Court of Punjab and

Haryana has categorically held that provisions of S. 13B can not be read to mean that personal appearance of the parties is mandatory. Procedural

law is subservient to justice and appearance of parties would include appearance through their duly constituted attorneys, because paramount thing,

which is required to be considered by the court is correctness of the contents of petition filed and also to see that consent of either of the parties has

not been obtained by way of force, fraud or undue influence.

In the case at hand, one of the parties i.e. appellant is unable to visit India that is why he executed a Special Power of Attorney in favour of his

father, authorizing him to sign/file the petition under S. 13B on his behalf praying therein for dissolution of their marriage by way of decree of divorce

with mutual consent.

Leaving everything aside, respondent-wife has no objection whatsoever to the prayer having been made on behalf of the appellant, rather, she

fairly stated before this court that she of her own volition without there being any external pressure has entered into compromise with her husband

(appellant), whereby they mutually agreed to dissolve their marriage by way of mutual consent. As has been taken note herein above, parties have

placed on record, settlement deed, whereby respondent has received a sum of `8.00 Lakh as permanent alimony from the appellant, as such, veracity

and correctness of the petition presented by father of the appellant being his attorney, can not be doubted merely on the ground that same has been

presented through an attorney.

Paramount consideration of the court, while recording its satisfaction is to ensure that consent of either of the parties has not been obtained by

way of force, fraud or undue influence. This court having carefully perused the settlement deed placed on record and statement of respondent-wife,

recorded on oath, is convinced and satisfied that the contents of the joint petition filed under S. 13B for divorce by way of mutual consent and also that

of consent of either of the parties have not been obtained by way of force, fraud or undue influence as such, prayer made in the petition under S.13B

of the Act, deserves to be accepted, especially when there is no possibility of reproachment or conciliation between the parties and as such, prayer for

grant of divorce by way of mutual consent deserves to be considered by this Court.

Since both the parties are living separately for the last two years and they have been litigating with each other, statutory period of six months as

envisaged under Section 13B of the Act for grant of divorce by way of mutual consent, can be waived, especially when there is no possibility of

rapprochement of the parties and marriage has broken beyond repair. In this regard, it would be apt to take note of the judgment rendered by the

Hon’ble Apex Court in Veena vs. State (Government of NCT of Delhi) and another, (2011)14 SCC 614, wherein the Hon’ble Apex Court has

held as under: 12.“ We have heard the learned counsel for the parties and talked to the parties. The appellant has filed a divorce petition under

Section 13(1)(a) of the Hindu Marriage Act, 1955, being HMA No.397/2008 which is pending before the Court of Sanjeev Mattu, Additional District

Judge, Karkardooma Courts, Delhi. In the peculiar facts and circumstances of this case, we deem it appropriate to transfer the said divorce petition to

this Court and take the same on Board. The said petition is converted into one under Section 13B of the Hindu Marriage Act and we grant divorce to

the parties by mutual consent.â€​

Reliance is also placed on a judgment rendered by Hon’ble Apex Court in Priyanka Khanna v. Amit Khanna, (2011) 15 SCC 612, wherein

Hon'ble Apex Court has held as under:- “7. We also see form the trend of the litigations pending between the parties that the relationship between

the couple has broken down in a very nasty manner and there is absolutely no possibility of a rapprochement between them even if the matter was to

be adjourned for a period of six months as stipulated under Section 13- B of the Hindu Marriage Act. 8. We also see from the record that the first

litigation had been filed by the respondent husband on 2.6.2006 and a petition for divorce had also been filed by him in the year, 2007. We therefore,

feel that it would be in the interest of justice that the period of six months should be waived in view of the above facts.â€​

In the instant case also, statutory period of six months deserves to be waived keeping in view the fact that the marriage between the parties has

broken beyond repair and there seems to be no possibility of parties living together. The Hon’ble Apex Court in Civil Appeal No.11158 of 2017

[arising out of Special Leave Petition (Civil) No.20184 of 2017] titled as Amardeep Singh vs. Harveen Kaur, decided on 12.09.2017, has held as

under:- “13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court

where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash

vs. K. Nalini 10, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11, Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and

Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by Kerala High Court in M. Krishna Preetha

vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11 AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt14. It was

submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of

one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He

submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation

and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2).

Thus, the Court should consider the questions: i) How long parties have been married? ii) How long litigation is pending? iii) How long they have been

staying apart? iv) Are there any other proceedings between the parties? v) Have the parties attended mediation/ conciliation? vi) Have the parties

arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties? 14 AIR 2010 Ker 157 14.

The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation

have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony. 15. We have given

due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament

and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the

concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time

elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court

grants divorce by mutual consent only if there is no chance for reconciliation. 16. The object of the provision is to enable the parties to dissolve a

marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment

was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the

cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was

not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has

to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in

enabling the parties to have a better option. 17. In determining the question whether provision is mandatory or directory, language alone is not always

decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice

G.P. Singh’s “Principles of Statutory Interpretation†(9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.15as

follows: 15 (2005) 4 SCC 480 “The study of numerous cases on this topic does not lead to formulation of any universal rule except this that

language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in

determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to

whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of

justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ “ ‘For

ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute,

and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of

complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with

the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that

flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by

holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to

innocent persons without very much furthering the object of enactment, the same will be construed as directory.†18. Applying the above to the

present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under

Section 13B(2), it can do so after considering the following : i) the statutory period of six months specified in Section 13B(2), in addition to the

statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself; ii) all efforts for

mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite

the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their

differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony. 19.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 20. If the above conditions are satisfied,

the waiver of the waiting period for the second motion will be in the discretion of the concerned Court. 21. Since we are of the view that the period

mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of

each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.â€​

Consequently, in view of the detailed discussion made hereinabove, present appeal is allowed. Order dated 22.5.2018 passed by the learned

District Judge, Kangra at Dharamshala in HMA Case No. 09/III/2018 is quashed and set aside. Joint petition filed by the parties under Section 13B(2)

of the Hindu Marriage Act is allowed. Marriage between the parties is ordered to be dissolved by mutual consent. Registry is directed to draw a

decree of dissolution of marriage by mutual consent accordingly. Terms and conditions contained in the settlement deed, referred hereinabove, shall

also form part of the decree. Needless to say, both the parties shall abide by all the terms and conditions contained in the settlement deed. Pending

applications, if any, are also disposed of.