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2010 DIGILAW 683 (KAR)

Sharma H. Kasinath v. Shobha

2010-06-04

D.V.SHYLENDRA KUMAR, N.ANANDA

body2010
JUDGMENT D.V. Shylendra Kumar, J : A petition filed by the petitioner husband under Section 13[1][ia] of the Hindu Marriage Act, 1955 [for short 'the Act'] before the Court of I Additional Principal Judge, Family Court, Bangalore, came to be dismissed by the Trial Court on the respondent - wife filing an application under Section 14 of the Act pointing out that the petition having been presented within a period of one year from the date of the marriage was not tenable in law. 2. The learned Judge of the Trial Court having looked into this aspect of the matter and as a matter of fact having found that the petition was presented within a period of one year, not only allowed the application, but also dismissed the matrimonial petition itself in terms of its order dated 2.9.2009 reading as under: "I.A. No. VIII is allowed. It is held that the petition is not maintainable under sec. 14 of H.M. Act. Consequently the petition is dismissed with liberty to the petitioner to file fresh petition according to law." 3. It is aggrieved by this order, the present appeal under Section 19 of the Family Courts Act. 4. Appearing on behalf of the appellant. Sri Vivekananda, learned Counsel would very vehemently urge that the period of one year was about to be over: that the shortage was only of a period of twenty days or so and in such circumstances, in terms of Section 14 of the Act which reads as under: 14. No petition for divorce to be presented within one year of marriage.-(1) Notwithstanding anything contained in this 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 the presentation of the petition one year has elapsed since the date of the marriage. No petition for divorce to be presented within one year of marriage.-(1) Notwithstanding anything contained in this 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 the presentation of the petition one year has elapsed since the date of the marriage. Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date 6f the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may he brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiry of the said one year." the petition should have been entertained by the Court, as several other High Courts have entertained the petition and one such case was decided by the Calcutta High Court which took the view that the provision is not mandatory but only directory and therefore urges that the Trial Court erred in dismissing the petition itself, even without have examining the possibility of retaining the petition etc. 5. Learned Counsel for the appellant has placed reliance in support of his submission on the Judgment of the Calcutta High Court in the case of 'Rabindra Nath Mukherjee Vs. 5. Learned Counsel for the appellant has placed reliance in support of his submission on the Judgment of the Calcutta High Court in the case of 'Rabindra Nath Mukherjee Vs. ITI Mukherjee @ Chatterjee' reported in 95 CWN 1085. 6. A bare reading of Section 14 of the Act would leave one with no doubt that it is the mandate of the legislature that a Court should not entertain a petition for dissolution of marriage by decree of divorce unless on the date of presentation of the petition one year has elapsed since the date of the marriage. With great respect, we are unable to agree with the view taken by the Calcutta High Court to hold that the provision should be understood to be directory and to read a different intention to the statutory provision than what is spelt out by the statute itself. 7. The proviso no doubt enables the High Court to frame rules indicating the circumstances and subject to fulfillment of the same a petition can be entertained even before the expiry of the period of one year from the date of the marriage. We are apprised that no such rules has been framed by this High Court. 8. However, Mr. Vivekananda, learned Counsel for the appellant would draw our attention to the Judgments of other High Courts wherein the view expressed is that Section 14 of the Act need not be construed strictly and a little lee (sic leen) way can be provided to entertain a petition for dissolution of marriages even when it is presented within a period of twelve months from the date of the marriage etc. 9. With respect to the learned Judge of these High Courts, as already indicated above, we are unable to agree with this interpretation of Section 14 of the Act. Section 14 of the Act serves a salient purpose and the legislature has with intention introduced this provision in addition to provisions of Section 13 of the Act and other provisions enabling a spouse to the marriage to seek dissolution of marriage. 10. Section 14 of the Act serves a salient purpose and the legislature has with intention introduced this provision in addition to provisions of Section 13 of the Act and other provisions enabling a spouse to the marriage to seek dissolution of marriage. 10. The opening sentence in the section which begins with a non-obstante clause leaves us with no doubt that Section 14 of the Act should prevail and the settled principle of interpretation of statutes being that Courts should adopt a plain and literary understanding of the statute and not to resort to interpretation either to nullify the intention of the legislature or to rewrite the statutory provision, with respect to the other High Courts which have taken a contrary view, we disagree with such views, hold that the legislative intent in the section cannot be avoided by resort to a process of interpretation to hold the section to be merely a directory provision, but on the other hand are of the view that it is only a mandatory provision and the intention and object of the legislation should be respected. 11. That apart, in so far as the present appeal is concerned, the appellant could not have claimed the benefit of the proviso for the simple reason that this Court has not framed any rules to enable situation wherein the petition can be presented even within a period of twelve months from the date of the marriage. 12. Yet another hurdle perhaps that stares at the face of the appellant is that there is absolutely no plea with regard to exceptional hardship or exceptional depravity on the part of the parties if the petition for dissolution of marriage is not entertained within a period of twelve months. Such being the factual and legal position there is absolutely no ground nor any need to entertain this appeal. 13. While this appeal is dismissed in limine, it is open to the appellant to present the petition in accordance with law and seek relief to which the appellant may be entitled to, otherwise in law.