Niti Arora vs Rohit Vij

Vinod K. Sharma, J.—This appeal is directed against the order passed by the learned District Judge, Panchkula. However, no appeal is competent against the impugned order. Therefore, with the consent of the parties it is treated to be a revision under Article 227 of the Constitution of Indian, office to register it as such.

By way of joint petition petitioners are aggrieved of an order dated 06.06.2008 passed by the learned District Judge, Panchkula vide which application moved by the petitioners for waiving of statutory period of 6 months in a petition for mutual divorce u/s 13-B of the Hindu Marriage Act (for short the Act) has been dismissed.

The marriage between the parties was solemnized on 12.12.2006 at Agra as per Hindu Rites and customs. However, from the initial stage itself the marriage ran into rough waters because of temperamental and other difference between the parties. In spite of efforts made by the families of both the petitioners it could not be sorted out due to complete incapability with each other since 13.03.2007 and the marriage between the parties irretrievably broken down leaving no chance of reconciliation.

Petitioner No. 1 got registered FIR No. 101 dated 20.07.2007 at Police Station Sector 20, Panchkula under Sections 406,498-A, 506/120-B IPC against petitioner No.2 and his family members. Petitioner No.2, on the other hand, filed a petition u/s 13 of the Act on 13.06.2007. Better sense prevailed between the parties and it was decided that a petition u/s 13-B of the Act for mutual divorce be filed in the court of learned District Judge, Panchkula on 05.06.2008. On the said date the parties made the following statement:-

We were married on 12.12.2006, according to Hindu Rites and ceremonies in Agra. No issue was born out of this wedlock. We have not been able to live together as husband and wife because of temperamental differences. We have been residing separately since 13.03.2007. Our marriage has irretrievably broken down. We have decided to seek divorce by way of mutual consent. We have resolved all the disputes regarding dowry articles and permanent alimony outside the court. Rs.30 lacs were received by petitioner No. 1 Niti Arora from petitioner No.2 Rohit Vij on 23.08.2007 towards the dowry articles and the expenses incurred by the parents of the petitioner No.1 in Connection with the marriage We have also agreed to withdraw all the civil and criminal cases, which have been filed by us against each other. Petitioner No.1 Niti Arora shall extend all possible assistance and co-operate with petitioner No.2 Rohit Vij in getting quashed FIR No. 101 dated 20.07.2007 police station Sector 20, Panchkula. Which was registered under Sections 406, 498-A, 506, 120-B IPC against the petitioner No.2 and his other family members on the complaint of petitioner No. 1 petitioner Niti Arora. Petitioner No. 1 Niti Arora shall not claim anything towards past, present and future maintenance from petitioners No.2 Rohit Vij. Our marriage may be dissolved by a decree of divorce by mutual consent u/s 13-B of Hindu Marriage Act.

An application was also moved along with the petition for waiving statutory period of six months as the case has been adjourned to 08.12.2008 for further proceedings.

Learned District Judge in view of the observation made by the Division Bench of this court in the case of Gurpinder Kaur Sahsi v. Ravinder Singh Sahsi, 2005(3) CCC 66 (P&H) : 2005(2) RCR(Civil) 303 dismissed the application.

Learned counsel for the petitioners contended the marriage between the parties was solemnized on 12.12.2006 and till date they have not reconciled themselves and the marriage has been totally broken down. There is no possibility of reconciliation. It is also the contention of the learned counsel for the petitioners that keeping in view the age of the parties continuation of spoiled marriage would have deleterious affect on the prospectus of remarriage of the parties. Learned counsel for the petitioners, therefore, prayed that it was a fit case where learned District Judge could have waived the period of six months so as to enable the parties to settle independently as parties are litigating for divorce since 13.06.2007 and have not reconciled.

Learned District Judge has rejected the application in view of the observations made by the Division Bench of this Court in the case of Gurpinder Kaur Sahsi v. Ravinder Singh Sahsi (supra).

This Court considered the observation of Division Bench of this Court in the case of Dr.Arun Gupta v. Dr.(Mrs.) Rita Gupta, 2008 (1) LH (P&H) 90 and was pleased to lay down as under:-

The learned District Judge, while noticing the judgment referred to above, has not agreed with the view expressed therein in view of the Division Bench judgment of this Court in Charanjit Singh Maun v. Neelam Mann, (2006) 2 PLR 851. In para No. 11 of the said judgment, the division Bench of this court has been pleased to lay down as under:-

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 nor earlier than six months after the date of presentation of the petitioner later than the expiry of 18 months after such presentation. The legislature, in the 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 ''consents'' free from any extraneous influence and is also not tainted with any ''collusion'' between the parties.

However, it maybe noticed that the finding recorded by the Division Bench was with regard to interpretation of Section 13-B, of the Act. It was in view of the facts of the said case that the Division Bench of this Court in para 18 of the judgment was pleased to hold as under:-

After a reunited 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 not 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 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 intentment behind the aforesaid provision, we reject the appellant''s contention that on conversion of his petition u/s 10 into u/s 13-B of the Act, the joint petition shall be deemed to have been filed on 15.04.1998.

At this stage, it may also be mentioned that in Ashok Hurra''s case (supra) as well as in the case of Smt. Swati Verma Vs. Rajan Verma and Others, , the Supreme Court while granting divorce by mutual consent waived off the waiting period provided in sub-section (2) of Section 13-B of the Act by invoking its powers under Article 142 of the Constitution. The powers akin to Article 142 of the Constitution are concededly not enjoyed upon by the High Court while exercising its appellate jurisdiction.

However, it may be noticed in this case, the question as to whether statutory period can be waived or not was not considered.

This Court in Amarjit Kaur''s case (supra) had also laid down that the statutory period prescribed u/s 13-B of the Act is six months. However, it was held that the period can be waived off under a given circumstances.

The Division Bench of this court in the case of Krishna Khetarpal Vs. Satish Lal, has been pleased to lay down that in appropriate cases the Court can grant instant relief of divorce without letting the parties to go in for another bout of litigation in the procedural mill, if the circumstances so warranted. It was also held in the said case that requirement of Section 13-B(2) were not to be strictly followed and six months'' period can be waived.

Again in the case of Arun Chawla v. Smt.Reena, (1997) PLR 756, the Division Bench of this Court was pleased to hold as under:-

Same was the view of the Madhya Pradesh High Court in the case of Padmini Hemant Singh, 1994(1) DMC 465. In the High Court an application was field u/s 13-B of the Act for grant of decree for divorce by mutual consent. In paragraphs 17 & 18, it was held as under:-

"17. The parties showed anxiety to terminate the torture and perish the pang without further procrastination. In this pursuit, they desired ''today'' and despised ''tomorrow'' perhaps on the same line as Martial assumed in Epigrams:-

Tomorrow will I live, the fool does say, Today itself too late, the wise lives yesterday.

By amendment, the law has set its face against unwilling perpetuation of the matrimonial status between two unwilling person. After all timetable as embodied is Section 13-B(2) is a procedural matter which is handmaid of justice. On one hand, I am satisfied that ingredients of mutual consent are fully satisfied in this case and on the other hand, 1 am disposed to hold that timetable fixed by Section 13-B(2) does not apply to Appellate court and imposes no fetters as such. In view the acceptance of prayer based on consent, I found it unnecessary to scrutinize the worth of evidence led by the parties and correctness of the conclusion recorded on it.

Similar was the view of the Rajasthan High Court in the case Hari Parkash Mishra v. Smt.Shakuntla Mishra. 1995(11) DMC 202. The court noted that when there are no chances that the parties, resuming their marital life and that keeping in view the fact there is no collusion between the parties, decree of divorce and dissolution of marriage can be grated with immediate effect. A Division Bench of this Court also took note of the similar facts in the case of Harpal Singh v. Smt.Shakuntala, 1995 (1) CCC 669 (P&H): (1995-2)110 PLR 203. The learned Additional District Judge in the cited case had dismissed the petition filed u/s 13 of the Hindu Marriage Act. During the pendency of the appeal, the parties arrived at a settlement and filed a joint application u/s 13-B of the Act. It was prayed that decree for mutual divorce may be granted in the interest of justice. On being satisfied that there were no chances of their living together, the petition was allowed and decree was passed for divorce declaring the marriage of the parties to have been dissolved. The learned Single Judge of this court in the case of Niranjan Kumar Vs. Veena Rani, agreed with the view point of Madhya Pardesh and Rajasthan High Courts, and held that when there was no chances of reconciliation, no useful purpose would be served by keeping the petition for divorce by mutual consent pending for a period of six months.

In view of the observation made above, the period of six months was ordered to be waived.

Again in the case of Gurpinder Kaur Sahsi v. Ruvinder Singh Sahsi, 2005 (2) AIHLR 118, the Division Bench of this Court was pleased to lay down as under:-

In AIR 2003 P&H 1979 (supra) (decided by us), the husband had filed a petition for the grant of divorce against the wife on the ground of cruelty. After hearing both the sides, the learned additional District Judge granted the decree of divorce. Aggrieved against the same, the wife filed appeal in this Court. During the pendency of the appeal, the parties arrived at a compromise and an application under Order 6 Rule 17, CPC was filed seeking amendment of the petition converting it into a petition for divorce by mutual consent. The said amendment was allowed and after recording the statements of the parties, the marriage between the parties was dissolved by a decree of divorce by mutual consent, by curtailing the period of six months and placing reliance on the law laid down by a Division Bench judgment of this court in Smt.Krishna Khetarpal''s case (supra). In our opinion, the law laid down in this authority would have no application to the facts of the present case. As referred to above, in the reported case, the husband had filed a petition for divorce on the ground of cruelty. The said petition was comested by the wife. The learned Additional District Judge granted the decree of divorce in favour of the husband vide decree dated 28.11.1996. Aggrieved against the same, the wife filed appeal in this court. The appeal remained pending for almost 6 years and it was only on 13.11.2002 that the decree for divorce by mutual consent was granted on the application jointly filed by the parties seeking amendment of the divorce petition and converting it into a petition for divorce by mutual consent u/s 13-B of the Act. In our opinion, under such circumstances, the Court was certainly competent to grant the decree of divorce by mutual consent u/s 13-B of the Act, since the matrimonial litigation between the parties remained pending for more than 6 months. However, the law laid down in this authority would have no application to the facts of the present case. As referred to above, in the present case for the first time the divorce petition with mutual consent was jointly filed by the parties on 10.10.2002 and just on the 24th day thereof, i.e. on 24.10.2002, the marriage between the parties was dissolved by a decree of divorce u/s 13-B of the Act which was just contrary to the provisions of Section 13-B of the Act and the law laid down by the Hon''ble Supreme Court in Smt.Sureshta Devi''s case (supra).

In view of the above, the present appeal deserves to be allowed and the judgment and decree passed by the trial court are liable to be set aside

Again in the case of Suresh Chand v. Kusum alias Sushma, (1998) PLR 181 and in Jaswinder Kaur v. Suresh Kumar, 2006 (3) CCC 647 (P&H) (DB): (2006)11 DMC 745 (DB) the Division Bench of this Court, while allowing the petition for divorce by converting it to one u/s 13-B of the Hindu Marriage Act, was pleased to hold that where the parties are unable to live together, their marriage should be dissolved by a degree of divorce by mutual consent and waiting period of six months was waived.

This view also finds support from the judgment of the Hon''ble Madhya Pradesh High Court in the case of Dinesh Kumar Shuka v. Neeta, (2005)11 DMC 51 (DB).

The judgments of the Hon''ble Kerala High Court in the case of P. Girija v. Suresh Kumar & Ors, 2007(1) AIHLR 728 and Rajasthan High Court in the case of Nund Kunwar v. Rajendra Singh Bhati, are on the same lines i.e. the court in given circumstances can waive statutory period of six months."

In view of the law laid down by this court in the case of Dr.Arun Gupta v. Dr. (Mrs.) Rita Gupta (supra) it has to be held that law is settled that the statutory period prescribed for divorce by mutual consent is six months and the parties are bound for wait for that period. But at the same time, on the facts and circumstances of a particular case, the court is competent to waive off the statutory period in the interest of justice and keeping in view the special circumstances of each case. The court, thus, has to take a decision on merit keeping in view facts of each case.

In the present case it may be noticed that both the parties are adamant and there is no chance of reconciliation and by way of compromise they have settled their difference/disputes. The parties are litigating for divorce since 13.06.2007.

Petitioner No. 1 has also undertaken to withdraw all the cases filed against petitioner No.2 and his family members.

Keeping in view the age of the parties continuation of spoiled marriage would have bad effect on prospectus of remarriage and enable them to settle independently it would be in the interest of justice to waive the statutory period of six months.

Consequently, this revision is allowed. The impugned order is set aside and the application moved by the petitioners for waiving statutory period of six months is allowed.

The parties through their counsel are directed to appear before the learned District Judge, Panchkula on 02.09.2008 for further proceedings in the matter.