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2004 DIGILAW 338 (JK)

Anjali Koul v. Sanjay Koul

2004-12-02

S.N.JHA

body2004
This civil revision is directed against the order of the Additional District Judge (Matrimonial Cases) Jammu, dated 28.5.2004 by which, holding that application filed by the respondent seeking permission to present petition for divorce in terms of proviso to Section 16 of the Hindu Marriage Act, 1980, had become infructuous with the passage of time, the learned Judge directed the petition (for divorce) to be registered. Section 16 of the Hindu Marriage Act provides that notwithstanding anything contained in the Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce unless at the date of presentation of the petition one year has elapsed since the date of marriage. In terms of proviso, the court may, in accordance with such rules as may be made by the High Court, allow a petition to be presented before lapse of one year on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. Shri. O. P. Thakur, learned counsel for the petitioner, submitted that grant of permission in terms of proviso to section 16 is a part of cause of action to the applicant seeking divorce within one year of marriage and, therefore, the court was required to dispose of the application on merit. He stated that the divorce is sought on the ground of mental disorder of the petitioner and it is necessary that the alleged mental disorder must exist on the date of presentation of the petition and thus the court should have returned the petition (for divorce) with liberty to the respondent to file another petition in accordance with law. The submission of the learned counsel, in my opinion, is purely academic. The cause of action for filing petition for divorce basically consists of factum of marriage and existence of grounds on which divorce is sought. As far section 16 is concerned, though heading of the section states that " no petition for divorce to be presented...", the section bars `entertaining any petition and not `presenting it within one year of marriage. It is well settled that heading of the Section is not to be interpreted as a substantive provision, it is the words of the Section that determine the import of the provision. It is well settled that heading of the Section is not to be interpreted as a substantive provision, it is the words of the Section that determine the import of the provision. Thus if petition is presented within one year, in the absence of permission in terms of proviso to section 16 of the Hindu Marriage Act, it shall not be entertained. The word `entertained in context, means that court shall not take cognizance of or proceed with it. The point can be made clearer with the help of illustration. Where permission is sought and granted, the date of presentation/filing cannot be the date permission is granted. The date of presentation will continue to be the date of filing. There cannot be two dates of filing. The permission in terms of proviso merely enables the court to proceed with the petition. Till such permission is granted, the petition/proceeding remains dormant. It would thus follow that where period of one year has passed, no permission would be necessary as after one year of marriage petition can be entertained without such permission. I thus find no error in the order of court below directing the petition for divorce to be registered as regular case. In the result, I find no merit in this revision which is, accordingly dismissed.