Research › Search › Judgment

Delhi High Court · body

2002 DIGILAW 254 (DEL)

NIRU VERMANI v. SHAMSHER SINGH

2002-02-20

S.N.KAPUR

body2002
S. N. KAPOOR ( 1 ) THIS is a petition filed by the wife challenges the order rejecting application to waive the statutory period of six months tor filing of the Second motion under Section 13 B (2) of the hindu Marriage Act. ( 2 ) THE learned Additional District Judge has rejected the application mainly on the ground of certain observations in Sureshta Devi Vs. Om Prakash AIR 1992, Supreme Court 1904, while discussing the provisions of Section 13 (B) of the Hindu Marriage Act in connection with. the question of need of the parties to join second motion. It is submitted that the question in issue was not the point of waiver of statutory period in the matter when the Supreme Court laid down as under: "from the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum is obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. " ( 3 ) THE learned Trial Court felt that the fact that marriage of petitioner No. 1 had been arranged on 22. 02. 2001 with one Mr. Anant Verma, an American citizen, who was on leave from his employer from 10. 02. 2002 to 20. 02. 2002, was not sufficient ground. The learned trial court has also not accepted it sufficient to waive the statutory period on the ground that petitioner no. 1, Mr. Shamsher Singh had been offered a permanent job in USA and was about to leave for USA permanently on 18. 02. 2002 and it would be impossible for him to come back to India to remain present at the time of Second Motion after six months. The husband has no objection to allow the Revision Petition. ( 4 ) THE learned-counsel for the parties have submitted that the provisions relating to statutory period of 6 to 18 months under section 13 B (2) of the Hindu Marriage Act is not mandatory and it is in the discretion of the Court to waive that period. The husband has no objection to allow the Revision Petition. ( 4 ) THE learned-counsel for the parties have submitted that the provisions relating to statutory period of 6 to 18 months under section 13 B (2) of the Hindu Marriage Act is not mandatory and it is in the discretion of the Court to waive that period. It is also submitted that the parties have mutually otherwise settled. The stigma is attached to a divorced wife and in case marriage is not allowed to take place, then the wife may suffer for all time to come. Similarly if the husband goes abroad, then it would become virtually impossible for him to come back by spending huge sums and to move second petition after expiry of six months. It is submitted that the parties have no issues. The parties have considered all the circumstances and this marriage has now become irretrievable in the circumstances of the case. The marriage took place on 08. 09. 98. They lived together till 2/10/2000 when they separated. After passing over 15 months when the matter could not be reconciled they have decided to seek divorce on the grounds of mutual consent and filed the petition on 19. 01. 2002. It is also submitted that nobody is going to be benefited by just making both the parties to unnecessarily suffer avoidable hardships. It is further submitted that lot of expenditure had already been incurred in connection with the ensuing second marriage, anticipating that the Court would be kind and liberal enough to waive the statutory period. It is also submitted by the parties counsel that provision under Sec. 13 (B) (2) of the Hindu marriage Act is not mandatory but directory in nature and it is appropriate to waive this statutory period in these circumstances. ( 5 ) I have given a thoughtful consideration to the matter. ( 6 ) THE marriage took place on 8/09/1998. They lived together till 2/03/2000. After over 15 months, when the matter could not be reconciled, they had decided to go in for divorce on the ground of mutual consent and filed the first motion application on 19th January, 2002. Nobody is going to. be benefited by refusing to waive the statutory period, except leading to unnecessary wastage of time, money and energy and causing unnecessary hardship to both of them. Nobody is going to. be benefited by refusing to waive the statutory period, except leading to unnecessary wastage of time, money and energy and causing unnecessary hardship to both of them. It is rightly submitted that Sec. 13b (2) has been incorporated with an intention to avoid delays in such matters of irretrievable break down of marriage. The second marriage of the wife was settled rightly by believing that the Court would be considerate and liberal enough to waive the statutory period in aforementioned circumstances. It is also rightly submitted by the learned Counsel for the respondent that by entering into settlement for second marriage, a situation has arisen where no other than excepting the view that marriage has been irretrievably broken down could be taken. In such circumstances it appears appropriate that the statutory period should be waived. ( 7 ) AS regards the submission that as in Ashok Hurra vs. Rupa Bipin Zaveri (1997) 4 SCC 226 , the Supreme Court has granted divorce/decree, this Court should grant the divorce, it is sufficient to say that it can not be accepted for the divorce decree was granted under Article 142 of the Constitution and this Court does not possess those powers. ( 8 ) IN the face of the facts in this case, it is apparent that the things have gone beyond the control of the parties. More than 15 months have passed since they separated and could not live together thereafter. Ultimately, they found a solution of seeking divorce on the ground of mutual consent. In the interregnum, the marriage of the wife has settled with the other boy and the husband wants to join a job by going abroad. The counsel for the parties are justified in submitting that the Court would be causing extreme hardship to both the parties in case the statutory period is not waived. The wife may not find any of the suitable boys for marriage ,in case the marriage in case the marriage is not allowed to take place. The wife and her parents are likely to suffer a lot of loss for they might have been led to believe in the considerate and pragmatic approach of the Court. The wife may not find any of the suitable boys for marriage ,in case the marriage in case the marriage is not allowed to take place. The wife and her parents are likely to suffer a lot of loss for they might have been led to believe in the considerate and pragmatic approach of the Court. In case the husband is just made to stay, he is also likely to loose the job, in the post 11/09/2001 and 13/12/2001 scenario which have led many persons unemployed in USA and in India due to consequential depression in the market. If a situation has arisen where the marriage has been irretrievably broken down and parties have created such circumstances where it is not possible for them to have a second look about the matrimonial relation then no purpose is going to be served by keeping a dead horse in stable of married life. It is rightly submitted that in such circumstances, this Court should waive the statutory period of six months for filing the second motion to allow the wife to get another husband and the husband to get a job. ( 9 ) AS regards the Statutory period under Section 13 (B) (2) it is rightly submitted that the provisions being directing in nature this Court has jurisdiction to waive this Statutory period in appropriate circumstances. This submission is based on the judgement of this Court in dhanjit Vadra Vs. Beena Vadra AIR 1990 Delhi 146, K. Omprakash Vs. Nalini AIR 1986 AP 167 , Roopa Reddy Vs. Prahhakar Reddy AIR 1994 Karnataka 12 and on Arvind Sharma vs. Dhara Sharma 1 (1998) DMC 34. ( 10 ) IT is rightly submitted jointly by learned Counsel for the parties that the observations culled out by the learned Trial Court in Surestha Devi Vs. Om Prakash AIR 1992 SC 1904 (Supra) did not relate to the point in issue; rather they related to a different question. It is also submitted that nobody challenges the desirability of statutory period in case there are ordinary circumstances. Om Prakash AIR 1992 SC 1904 (Supra) did not relate to the point in issue; rather they related to a different question. It is also submitted that nobody challenges the desirability of statutory period in case there are ordinary circumstances. But when unusual circumstances have arisen like the impending marriage of the wife and impending departure of the husband to join a job abroad, then the court is supposed to be considerate and pragmatic and should take a liberal view by allowing the marriage to be dissolved on the ground of mutual consent by waiving the statutory period of six months. ( 11 ) SINCE the consistent view of the above mentioned High Courts is that the provision relating to statutory period of six months for moving the second motion is not mandatary but directory, I feel it appropriate in the aforesaid circumstances that this statutory period should be waived to avoid unnecessary hardship and the application for waiving the statutory period may be allowed. ( 12 ) FOR the forgoing reasons the Statutory period of six months under Section 13 B (2) of hindu Marriage Act is waived, and the application to waive the period is allowed. ( 13 ) IT is expected that the learned Trial Court in aforesaid pressing circumstances would be considerate enough in disposing the matter, if possible on 21st February, 2002 for the parties counsel assure that both the husband as well as the wife shall remain present. Parties are directed to appear on 21st February, 2002 itself before the learned Trial Court. A copy of this order may be given Dasti and in case of necessity by the Court Master.