Deepa Dutta @ Smt. Deepa Ghosh v. Pradeep Ghosh — 1995 DIGILAW 622 (PAT)

Judgment P.K.Deb, J. 1. The appellant in this case was respondent in Matrimonial (Title) Suit No. 36 of 1993 before the Second Additional District Judge, Hazaribagh. The respondent was the petitioner in that case. The above Matrimonial (Title) Suit No. 36 of 1993 was filed under Sec. 11 and/or 12(1)(c) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for declaration that the marriage solemnised between the spouses above named on 19.11.1992 was void on the ground that the appellant-respondent was insane at the time of marriage and concealing that fact, she was given in marriage with the petitioner-respondent. 2. The admitted facts of the case is that after due negotiation marriage was solemnised between Pradeep Ghosh and Deepa Dutta on 19.11.1992 at Pathardih in the district of Dhanbad. It was alleged by the husband that at the time of negotiation of the marriage although the husband party want to see the bride, there was no scope for any conversation as she was keeping silence and they thought it to be a mere shyness of the girl of a middle class family. After solemnisation of the marriage, the wife was brought to the house of husband at Ramgarh within the district of Hazaribagh and the ceremonies that are usually done in the Bengalee families were celebrated but during that period it could be revealed that the wife was behaving un-naturally. Practically the matrimonial home subsisted only to 25.11.1992 when the wife was taken to the house of her father and some treatments were made, but according to the husband, he became frustrated in the marriage itself and he was not mentally prepared to accept her when she practically remained unnatural and insane. 3. The suit was filed in the year 1993 after the lapse of one year i.e. on 29.9.1993 for annulment of the marriage on the ground of insanity of the appellant-wife. The suit was not contested from the side of the appellant and ultimately the suit was decreed after taking evidence from the side of the husband by judgment and order dated 6.5.1994. It appears that the wife-appellant also filed Matrimonial Suit. No. 84 of 1993 in the court of Dhanbad for restitution of conjugal rights under Sec. 9 of the Act and her suit was earlier in point of time as was filed on 19.9.1993. 4. It appears that the wife-appellant also filed Matrimonial Suit. No. 84 of 1993 in the court of Dhanbad for restitution of conjugal rights under Sec. 9 of the Act and her suit was earlier in point of time as was filed on 19.9.1993. 4. After the decree of the present Matrimonial Suit annulling the marriage under Sec. 11 of the Act, this appeal was preferred and prayer was made for staying further proceedings of the suit for restitution of conjugal rights filed by the appellant but by order dated 19.9.1994 this Court had rejected that order. The respondent on appearance took vehement objection regarding the appeal. 5. After hearing both the parties, this Court felt that as the decree appealed against the ex-parte decree, there was no scope for the learned court below to-make an attempt for reconciliation between the parties as envisaged under Sec. 23(2) of the Act to save the Matrimonial home, and as such, by order dated 13.12.1994 this Court thought it better to have an attempt for reconciliation before this Court itself and, accordingly, the parties were brought and this Court made very many attempts to make reconciliation between the parties, but after having discussions and personal dialogue with the spouses individually and then jointly, it could be found that the relationship between the spouses had gone to such stage of no return that it was impossible to reunite them and as such when a proposal was mooted for annulling the marriage by a decree of a mutual consent, both the parties, readily agreed and consequently matters such as permanent alimony, return of Stri Dhan etc., were also settled in presence of both the parties before this Court which can be found in the order dated 5.1.1995 itself. Parties agreed to file a joint petition seeking divorce by mutual consent as contemplated under Sec. 13-B of the Act. In the process, as agreed upon, Rs.45,000.00 was paid by the husband through cheque to the wife on the day of filing of the joint petition and Stri-Dhan properties, gift etc., made in the celebration of marriage were returned to the wife by the husband through Nazir of the Civil Court at Hazaribagh. While making over the cheque to the wife, it was specifically ordered that the amount shall be kept in deposit and should not be spent till finalisation of divorce matters between the spouses. While making over the cheque to the wife, it was specifically ordered that the amount shall be kept in deposit and should not be spent till finalisation of divorce matters between the spouses. A long order was passed by this Court while admitting the petition under Sec. 13-B of the Act vide order dated 25.4.1995. After several sittings in Chamber, it could be felt by the Court that there is practically no scope of returning or resumption of matrimonial relationship between the two and as such the joint petition was admitted and was kept pending for six months as contemplated under Section 13-B(ii) of the Act. 6. The conception of Hindu marriage is totally different from that of Muslim marriage or Christian marriage. In Muslim and Christian marriages, the concept is of contractual one while the Hindu marriage is of sacramental. There was no scope of divorce in the Hindu marriage for the sacramental concept of it but due to social changes, modernisation of the people and advancement of the social out-look, the provisions of divorce and other provisions of judicial separation, restitution of conjugal rights etc., were left very much necessary and then Hindu Marriage Act, 1995 came in force Due to sacramental nature of marriage having no contractual obligation, the grounds for divorce and judicial separations were more or less very stringent and it could be found that when there was no ground for divorce available under the Act but the circumstances could not be able to adjust themselves, there remained then no scope for getting the marriage annulled by a decree of divorce and the two lives of matrimonial knot had to survive without leading the conjugal life and considering this aspect, the amendment came in the year 1990 whereby the provision of divorce by mutual consent was also brought in. Although there is a provision in the Act that while filing matrimonial suit, there should be an averment to the satisfaction of the court that there is no collusion between the parties in filing the matrimonial suit but that provision did not debar in making an amended provision of divorce by mutual consent. The grounds enumerated for judicial separation or divorce are not necessary to be locked into in a petition mutual divorce. The grounds enumerated for judicial separation or divorce are not necessary to be locked into in a petition mutual divorce. Only three conditions are necessary for decree of divorce by mutual consent- (i) when the spouses are living separately for more than one year (ii) that they have not been able to live together (iii) that they have mutually agreed that the marriage should be dissolved. If only these three conditions are satisfied, it is obligatory on the part of the court to pass a decree for divorce without going into deep as to the reasons of mal-adjustment in the marriage or other reasons behind their living separately. There is distinct deviation of the sacramental value of the matrimonial relationship due to the changes in outlook of the modern society and divorce has become a part of the life now-a-days. In almost every family even in the rural areas, there is propagation of concept of divorce when there is mal-adjustment or non-adjustment between the spouses. Sec. 13-B of the Act reads of follows: Divorce by mutual consent- (1) subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the Direct 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 not been separately for a period of one year or more, that they 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-sec. (1) and not later than eighteen months after the said date, ii the petition in 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 solemnised 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. 7. 7. Whenever a petition for mutual divorce is filed before a District Court, then the Court should make an endavour for reconciliation and for that purpose under Sub-section (2) of Sec. 13-B of the Act, time should be given for six months at lease for arriving at reconciliation or giving time to brood over the matter by both the spouses whether they should stick to the decision of mutual divorce and for that reason, the petition is kept pending for eighteen months and either of the spouses is at liberty to withdraw the consent during that period. 8. The purpose behind this mutual divorce in not going the usual very of getting separation or breaking the tie of unfruitful marriage was also for saving the time against prolonged trial in usual processes so that the spouses may not lose their youths and ages and they may start their new lives of their own choice with new partners of lives but even them it remains the bounded duty of the Court to make all efforts for retaining the matrimonial home keeping in view the sacramental aspect of the Hindu marriage but when all hope and scope to maintain the same vanishes then proper justice would be done by giving a divorce by mutual consent. Now this provision has specifically mentioned that the petition for mutual divorce can be entertained by the District Court i.e. the original court within whose jurisdiction all matrimonial matters lie, but a matrimonial proceeding filed before a District Judge is lingered when an appeal or revision is preferred before the higher Courts either before the High Court or Supreme Court, then the question arises whether such provision of the Act may be made valuable to the appellate court or revisional court also. The original concept was that when such sort of compromise is arrived at in the appellate or revisional court they refused to exercise- their jurisdiction and the duty of the High Court was to send back the cases to the District Court again for proceeding according to law under the Act. But considering the hardship of the spouses, the concept has now been changed. But considering the hardship of the spouses, the concept has now been changed. If the matter is again sent back to the District Judge then it may prolong definitely and the very purpose of quick disposal in the matter when the parties had agreed upon to live separately after being frustrated in fighting the cases in the court below, then the various High Courts have reached to the conclusion that the petition under Sec. 13-B of the Act can also be entertained at the appellate or revisional jurisdiction. The purpose under Sub-sec. (2) of Sec. 13-B of the Act was to give time to the parties to brood over the matter because it sometimes happens that due to certain quarrel and mounting of emotional impulses, the spouses decide at the heat of the passion to get the marriage broken by filing a divorce petition on mutual consent but after the good senses prevail and impulses cool down, they might give second thought to retain the matrimonial relation and to make first and to give opportunity for locus paeni tentiae time is given for six months. But now the Courts have held that although the word "shall" is used in Sub-section (2) of giving opportunity of six months, the provision is not mandatory one but a directory one. It was held by a Division Bench of Andhra Pradesh High Court in K. Omprakash V/s. K. Nalini -- that "Section 13-(2) should be read as directory only. Sec. 13- B(2) no doubt cautions the Courts of its duty to fight the last ditch battle to save the marriage but when the Court is fully satisfied, on the basis of the proved facts, that in the interests of justice of the society and the individuals marriage tie should be put under memory, Sec. 13-B(2) does not impress any fetter on the powers of the Court but grant instant decree of divorce. At any rate, table fixed by Sec. 13-B(2) does not apply to an appellate Court where in appeal petition for divorce it was found that the parties had been living apart for long and their wed-lock had virtually become a dead-lock, and the chances of re-union had completely faded away, it was just and proper to grant a decree of divorce straightway". The same view has been taken by the Allahabad High Court also in Indrawal V/s. Radhey Raman -- . The same view has been taken by the Allahabad High Court also in Indrawal V/s. Radhey Raman -- . Recently it could be found that the Supreme Court has also taken the same view although specifically it has not been mentioned so. Reference in this connection may be made to Preeti Singh V/s. Sandeep Singh and Ors. AIR 1955 Supreme Court 1851. 9. In the present case, matrimonial suit was filed not for the prayer of divorce but for the annulment of marriage and it was specifically asserted that the marriage was solemnised by practising fraud as the appellant Deepa Dutta was mentally derailed at the time of marriage and the same was suppressed and consent of the husband was taken by practising fraud. It was further alleged that the marriage could not even be consummated due to unnatural mental condition of the appellant-wife and decree was passed ex-parte in the District Court. It the appellate stage when attempt for reconciliation was made by this Court, it could be found that the appellant was normal and was having no mental derailment. It might be that at the time of marriage she might have mental abnormality or it might be a cooked up story from the side of the husband but the fact remained that the matrimonial knot soon after solemnization of the marriage had broken virtually and practically no matrimonial home was set up between the spouses and there was no scope of knowing each other leading conjugal life for some time. It was found that love and affection between the two had been totally lost rather had not been grown up at all. At it happens in middle class family, the marriage was celebrated on negotiation between the guardians of the spouses and they had no scope for knowing each other even prior to the marriage also and, in my view, the marriage was only a name-sake in the present case. The parties have already lost about three-four years of their youth and after talking to them, it could be felt that they are bent upon to lead their individual lives breaking the unfruitful marriage knot. The parties have already lost about three-four years of their youth and after talking to them, it could be felt that they are bent upon to lead their individual lives breaking the unfruitful marriage knot. However, although this Court was having jurisdiction to grant an instant decree on the petition for mutual divorce, but it was felt necessary, particularly in the circumstances of this case when the appeal is an ex-parte decree that some more time should be given to the spouses for the purpose of reconciliation or for withdrawal of consent as envisaged under Sec. 13-B(2) of the Act. 10. From the husbands side, it was readily accepted to withdrawal all imputations against the appellant-wife regarding mental derailment etc., and they have simple stated in the joint petition that there was mal-adjustment between the two and, as such, they could not live together and got themselves separated soon after the celebration of the marriage. 11. After six months have been elapsed, the parties appeared before this Court and have consented again to grant the decree of divorce as prayed for earlier. In such circumstances, I do not find. any impediment in granting decree of divorce on mutual consent between the appellant and the respondent when it could be found that there is no scope for retaining/resumption of the matrimonial home between the two when the marriage between the two have already been proved unfruitful one. The decree of divorce is granted accordingly and from date, the spouses would be free to lead their individual lives forgetting this dreadful chapter of marriage between the two. Before parting with the records, this Court hopes and trusts that the spouses would be happy in their future life, if possible by taking life partners of their own choice and all good wishes would remain with them. The appellant Deepa Dutta would be at liberty to deal with lump-sum permanent alimony deposited in her favour henceforth. Decree may be drawn accordingly.