ANIRUDHAN v. PRASANNA KUMARI — 1988 DIGILAW 545 (KER)

Judgment :- 1. A husband and wife sought for a decree of divorce dissolving their marriage as per the provisions of S.13 B of the Hindu Marriage Act, 1955 (for short 'the Act'). Both of them together filed a petition on 16-7-1986 on the ground that they have been living separately for more than one year and that they have not been able to live together and further that they have mutually agreed to have their, marriage dissolved. The court below posted the petition to 24-7-1987 (skipping the period of six months which is envisaged in the Section). On that day, the husband was present in court but the wife was absent. Hence the lower court dismissed the petition for default. Later, an interlocutory application was filed by the husband praying for restoration of the petition. Learned Sub Judge dismissed the interlocutory application by the impugned order. This Civil Revision is at the instance of the husband. 2. According to the learned Sub Judge, S.13 B of the Act makes it clear that no court shall conduct such enquiry before the expiry of six months from the date of presentation of the petition, and it further provides that such enquiry shall be made not later than eighteen months. In the opinion of the Sub Judge, the period of eighteen months provided in the sub-section "does not mean that the court shall not enter into the merit of the petition on any date prior to it and after the expiry of six months". The lower court took the view that it is impossible to conduct the enquiry contemplated in sub-s. (2) if one of the spouses is absent, even though the personal presence of the parties is not a condition precedent in holding the enquiry. 3. Learned counsel contended that it is not permissible for one of the parties to a petition under S.13 B of the Act to withdraw from the petition jointly filed as the scope of enquiry is confined to three aspects: Whether the spouses have been living separately for more than one year, whether they have not been able to live together and whether they have mutually agreed that the marriage should be dissolved. 4. 4. S.13 B of the Act reads as follows: "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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 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-s. (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 solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree". A Division Bench of this Court in Mohanan v. Jeejabai (1986 K.L.J. 833) has held that satisfaction of the court under S.13 B of the Act contemplates "an opportunity for either of the spouses to withdraw the consent or to indicate from other circumstances that an order of divorce, in terms of the application, may not be desirable". The said decision is authority for the position that it is open to one of the parties to withdraw the consent once given. However, the question which arises in this revision is whether the petition could have been dismissed before or after the expiry of eighteen months (from the date of filing) for default of one of the spouses. 5. Sub-s. (2) envisages two stages in the prosecution of the petition filed under sub-s. (1). The first stage ends with the expiry of six months from the date of filing the petition. The second stage commences thereafter and ends with the expiry of eighteen months from the date of filing the petition. No party can do anything during the first period. The petition remains in limbo or torpidity during that period. On the expiry of the first period, the crucial stage sets in. The second stage commences thereafter and ends with the expiry of eighteen months from the date of filing the petition. No party can do anything during the first period. The petition remains in limbo or torpidity during that period. On the expiry of the first period, the crucial stage sets in. During the second stage, the petition can be resuscitated into life. But this can be done only "on the motion of both the parties". Such a motion need not necessarily be made jointly by both parties. But there must be motion from both sides. In other words, a unilateral motion is incapable of galvani zing the petition from dormancy. If any motion is made by the spouses either together or separately the court can conduct the enquiry. It is not necessary that the enquiry should be concluded before the expiry of eighteen months from the date of filing the petition. No time limit is fixed for final disposal of the petition. But the motion envisaged in sub-s. (2) has to be made before the expiry of the eighteen months' period. The words "not earlier than six months' after the date of presentation of petition" are sufficient to indicate that nothing can be done by the court, during the first stage. Similarly the words "and not later than eighteen months..." clearly point to the legislative intent that unless the motion envisaged in the sub-section is made before the expiry of the period in the second stage nothing can be done on the petition. If the parties fail to make the motion till the expiry of the period of eighteen months its logical consequence is the lapsing of the petition. It may be that the parties can file a fresh petition under S.133 (1) of the Act since there can be no bar of res judicata or estoppel. 6. S.13 of the Act envisages a decree for divorce on account of one of the grounds of fault on the part of one of the spouses. That section is based on the prestine principle that a wedlock can be dissolved on the ground of fault. No doubt, the area of operation of the aforesaid basic idea has been considerably widened in S.13. That section is based on the prestine principle that a wedlock can be dissolved on the ground of fault. No doubt, the area of operation of the aforesaid basic idea has been considerably widened in S.13. But the idea enshrined in S.13 B is a new innovation in the law of Hindu Marriage which was introduced for the first time through Act 68 of 1978 by the Carriage Laws (Amendment) Act, 1976. Of course, the concept of mutuality for dissolution of a marriage had gained legislative recognition in the Special Marriage Act, 1954. That concept was adopted in the Hindu Marriage law by Act 68 of 1978, The provisions in S.13 B evidently helps those spouses who cannot live together as husband and wife. Hence the right to have divorce by mutual consent, being the creation of the statute, could be granted only on compliance of the conditions laid down in the statute. If one party does not wish to have a divorce by mutual consent even after filing the joint petition, he can refrain from making a motion under sub-s. (2) in which case the court cannot pass a decree. 7. In Nachhattar Singh v. Harcharan Kaur (AIR 1986 Punjab; Haryana 201) a single judge has held that a reading of sub-s. (2) would show that the scheme of S.13 B does not envisage withdrawal of consent by one party. Learned Judge has observed further that "if both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all the other conditions mentioned in sub-s. (1) of S.13 B of the Act are fulfilled, it will not be open to a party to withdraw the consent". With great respect, I am unable to agree with that view because there is nothing in S.13 B to indicate that once a party signifies his consent, he will be pinned down to it whatever be his mental disinclination subsequently. Such rigidity, if attached to the spouses, would be antithesis to the concept of mutuality enshrined in the provision. On the other hand, sub-s. (2) makes it clear that it is open to the parties to withdraw the petition at any time before the expiry of eighteen month's period. Such rigidity, if attached to the spouses, would be antithesis to the concept of mutuality enshrined in the provision. On the other hand, sub-s. (2) makes it clear that it is open to the parties to withdraw the petition at any time before the expiry of eighteen month's period. This intention of the Parliament is evidenced by the words used in the sub-section (" if the petition is not withdrawn in the meantime" ....) While enacting S.138 the legislature intended that the mutuality of the consent must continue to subsist until the expiry of the said period of eighteen months or at least until the time of making the motion mentioned in the sub-section. There can be very many reasons which may persuade the parties, or at least one of them, to resile from the consent once signified. The mere fact that he or she has once agreed to have the marriage dissolved does not mean that he is bound to cling or stick to it whatever be the subsequent situation. It is to be mentioned, in this context, that a Division Bench of the same High Court has later overruled the said decision rendered by Pritpal Singh, J. (vide Harcharan Kaur v Nachhattar Singh, AIR 1988 Punjab; Haryana 27). The following observations of the Division Bench are worth quoting in this context: "Unless the parties to the petition under S.13B who have mutually consented to have the marriage dissolved, continue to signify their mutual consent for the dissolution of the marriage right up to the date of the decree, the marriage cannot be dissolved under sub-s. (2) of S.13B of the Act merely on the basis that six months earlier the parties had together presented the petition for dissolution of marriage by mutual consent. Either of the parties to the petition under S,13 B. that is, husband or wife, is at liberty to revoke its consent any time before the petition is finally disposed of, and if the other party is still keen to have the marriage dissolved, the other provisions of the Hindu Marriage Act are still available for the grant of necessary relief if a case is made out for the same". The said observations are in tune with the observations" made by Sivaraman Nair, J. in Mohanan's case (cited supra). 8. The said observations are in tune with the observations" made by Sivaraman Nair, J. in Mohanan's case (cited supra). 8. My attention has been drawn to the decision rendered by a single judge of the Delhi High Court in which it is held that one party to the mutual agreement cannot be permitted to resile from it later (Vide Chander Kanta v. Hans Kumar, (1988) D.H.C. 509). The said view was based on the principle contained in 0.23 R.1 (5) of the Code of Civil Procedure (for short'the Code'). As per the said sub-rule, the Court is not authorised to permit one of the plaintiffs to withdraw any suit without the consent of the other plaintiff or plaintiffs. The said principle was read into S.13 B by Sunanda Bhandare. J. in the aforesaid case and held that the petition presented under S.13B (1) of the Act also cannot be withdrawn by one party unilaterally. The provisions of the Code are made applicable to proceedings under the Act in a restricted sense. S.21 of the Act says that proceedings under the Act can be regulated "as far as may be" by the Code of Civil Procedure "subject to the other provisions contained in this Act". This means that the rules in 0.23 can be applied to a petition under S.13 B only if it can be done consistently with the provisions of the Act. The procedure prescribed in S.13 B (2) of the Act overrides the rules in 0.23 R.1 (5) of the Code. Hence I find it difficult, with great respect to the learned single judge, to agree with the aforesaid reasoning adopted in Chander Kanta's case. 9. Learned counsel cited the decision of a Division Bench of the Andhra Pradesh High Court in Omprakash v. Nalini (AIR 1986 A.P. 167) in which it is held that the time limits fixed under the sub-section are only directory and hence court can justifiably pass a decree before the expiry of the first six months. The aforesaid decision was followed by a single judge of the Gujarat High Court in D.H. Garasia v. N. Mansu (AIR 1988 Gujarat 159). The aforesaid decision was followed by a single judge of the Gujarat High Court in D.H. Garasia v. N. Mansu (AIR 1988 Gujarat 159). Choudhary, J. who wrote the judgment of the Division Bench of the Andhra Pradesh High Court in Omprakash's case (cited supra) has stated that if the time limits in the sub-section are read as mandatory, it would become unworkable and that procedural provisions must be interpreted as handmaid of justice and in order to advance and further the interest of justice and not as a technical rule. According to the Division Bench, a literal reading of the sub-section prevents the court from granting the relief after a period of eighteen months because if the trial court dismisses the petition for some reason, the appellate court would be powerless to grant that relief since eighteen months would normally elapse by the time the matter reaches the appellate forum. Choudhary, J. has observed in the said decision that "it could not have been the intention of S.13-B (2) that the appellate court should always drive the fighting parties to go through the purposeless forms of meaningless ceremony of petitioning again for consent divorce, waiting and watching the completion of necessary number of revolutions of this mother Earth around the unmoving sun" With great respect, I cannot agree. There is nothing in S.13B which inhibits the court from passing a decree after the expiry of eighteen months. The only condition is that the motion should be made by the parties before the expiry of eighteen months. Once the motion is made within that period a decree can be passed either by the trial court or by the appellate court irrespective of any time limit. The Division Bench did not consider the implications of the expressions "not earlier than" and "not later than" as used in the sub-section. 10. When the court dismissed the petition on 24-7-1987, it was short by 5 months and 22 days for expiry of the eighteen months' period provided by the sub-section. Interest of justice demands that the said period must be allowed to run its full course. Since the court below had no jurisdiction to dismiss the petition before the expiry of eighteen months, I allow the Civil Revision Petition and set aside the order of dismissal of the main petition. Interest of justice demands that the said period must be allowed to run its full course. Since the court below had no jurisdiction to dismiss the petition before the expiry of eighteen months, I allow the Civil Revision Petition and set aside the order of dismissal of the main petition. If a motion is made by the parties during any time within 5 months and 22 days from the date of receipt of the records of this case in the trial court, the court shall proceed to conduct the enquiry envisaged in the section and dispose of the petition according to law. C.R.P. is disposed of accordingly.