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2012 DIGILAW 1700 (MAD)

Roopa v. A. Shanmugam @ Suresh

2012-04-02

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This revision is directed against the fair and executable order passed in O.P.No.47 of 2008 in granting a decree of divorce on mutual consent. 2. The revision petitioner herein was the 2nd petitioner and the respondent herein was the 1st petitioner in O.P.No.47 of 2008, a petition filed by both parties for divorce on mutual consent. 3. The averment made in the petition filed by both the parties before the lower Court would be as follows:- The marriage between the petitioners was solemnised on 22.01.2007 at Krishna Mahal Kalyana Mandapam at Chengalpattu, as per Hindu rites and customs and the presence of kith and kin from both sides. Soon after the marriage, after a brief stay at Chengalpattu, there arose some indifferences in their marital life. Some irreconciliable disputes and differences arose between to get separated from each other as all efforts of reconciliation have failed. 3(2) Inspite of best efforts to bridge the indifferences has failed now there is absolutely no scope to rejoin. The petitioners have decided to settle the matter by mutual consent. This Court has jurisdiction as the parties had resided together at Chengalpattu in the above stated address which fall within this jurisdiction. The parties are living separately from 22.01.2007. 3(3) The exchange of articles have taken place. There shall be no past, present and future maintenance against each other and shall not claim any right over each other and no children were born out of this wedlock. 3(4) The petitioners have given their consent voluntarily, so there is no coercion or force or undue influence on the consent given by them for dissolving their marriage. 3(5) The petitioners have decided to get divorce on mutual consent. The petition filed this petition for divorce by mutual consent on their own accord and not on any undue influence, coercion, misrepresentation etc. The petitioners have not colluded with each other in presenting this petition. 3(6) There is no collusion between the parties in filing this petition and there is no legal bar, for granting the relief claimed in this petition. 3(7) Therefore, the petitioners prays this Court to pass an order of judgment and decree to dissolve the marriage took place between the petitioners on 22.01.2007 at Krishna Mahal Kalyana Mandapam at Chengalpattu. 4. 3(6) There is no collusion between the parties in filing this petition and there is no legal bar, for granting the relief claimed in this petition. 3(7) Therefore, the petitioners prays this Court to pass an order of judgment and decree to dissolve the marriage took place between the petitioners on 22.01.2007 at Krishna Mahal Kalyana Mandapam at Chengalpattu. 4. On the basis of the allegations made in the aforesaid petition, the lower Court had posted the case on 12.02.2008 and passed an order in I.A.No.132 of 2008 and thereby six months period was waived and on being satisfied by the allegations made in the proof affidavit of the petitioners, the lower Court had come to a conclusion that all the attempts made for conciliation ended in vain and the marriage between the parties had broken in unequivocal terms and therefore, divorce by mutual consent was conceded. Against the said order, the second petitioner before the lower Court namely, the wife had filed this revision questioning the validity of the said order. 5. Heard Mr.C.B.Muralidharan, learned counsel for the revision petitioner/wife and Mr.G.Maheshkumar, learned counsel for the respondent/husband. 6. The learned counsel for the revision petitioner would submit in his argument that the lower court did not consider the mandatory provisions envisages in Sec.13(B) of the Hindu Marriage Act. He would further submit that the waiver of six months period which is a mandate in Section 13 (B) (2) of the Act, is quite contrary to law. He would also submit that the filing of the petition itself should have been done after the lapse of one year period from the date of separation but it was presented and filed on 16.11.2007 despite, the marriage was solemnised only on 22.01.2007. He would further submit that an enquiry should have been conducted by the lower court by examining the parties in open court and the mere production of proof affidavit would not be sufficient to ascertain the wishes of the parties. He would also submit that this Court being a supervisory Court watching over the proceedings of the lower court under Article 227 of the Constitution of India, the flaw in following the procedure as per law in passing the orders in the said petition should have been corrected. He would also submit that this Court being a supervisory Court watching over the proceedings of the lower court under Article 227 of the Constitution of India, the flaw in following the procedure as per law in passing the orders in the said petition should have been corrected. He would also submit that the conditions imposed for passing an order of divorce on consent as well as the condition for filing of the petition as envisages in the provisions of Section 13 B of the Act have been violated and therefore, the order passed by the lower court has to be interfered and set aside. 7. The learned counsel for the respondent Mr.Magesh Kumar, would submit in his argument that the wife was agreeing for passing an order of mutual consent and therefore, the lower court has granted a consent decree. He would also submit that she did not say any thing against the waiver of six months' period and actually she only insisted for the decree being passed on consent. He would further submit that the separation takes place even on the date of marriage and no nuptial night has been arranged and both the parties were living in isolation and therefore, both the parties did not want the re-union but divorce only. He would further submit that the parties have come to a conclusion of applying for divorce was only after reaching such contingency and therefore, the judgment and decree passed by the lower court after getting consent of both parties need not be interfered and set aside. He would also refer to a judgment of Punjab and Haryana High Court reported in AIR 1987 P&H 191 (Smt.Krishna Khetarpal v. Satish Lal) to the principle that no appeal can be preferred against the consent decree and strict compliance of Section 13(B) (2) are not necessary. He would also rely upon the judgment of Andhra Pradesh High Court reported in AIR 2003 AP 32 (Smt.Anitha v. R.Rambilas) for the principle that no appeal could be preferred against the consent decree, but if any party was aggrieved that fraud has been committed in a proceedings under Section 13(B) of Hindu Marriage Act, a review could be possible. He would therefore request the Court to dismiss the revision petition as not maintainable in law. 8. I have given anxious thoughts to the arguments advanced on either side. 9. He would therefore request the Court to dismiss the revision petition as not maintainable in law. 8. I have given anxious thoughts to the arguments advanced on either side. 9. The facts culled out from the records would go to show that the revision petitioner/wife and the respondent/husband were married on 22.01.2007 at Krishnamahal, Chengalpattu, as per Hindu rites and Customs in the presence of kith and kin of both the parties and the said marriage was at the wish of both the parties arranged by their family. It is also stated in the petition that after a brief stay, there arose some indifferences in the marital life due to some un-reconcilable disputes and differences arose in between the parties could not be settled. On the basis of which, the petition was filed by both parties on 16.11.2007. 10. The learned counsel for the petitioner questioned the proprietary of the lower court in taking the petition on file before the lapse of one year of separation. He would rely upon a judgment of the Hon'ble Division Bench of Orissa High Court reported in AIR 1997 Orisssa 47 (Satyabhama Nayak v.Narendra Kumar Kumar Nayak), for the principle that the divorce granted without following the procedures laid down in Section 13 (B) of Hindu Marriage Act and without complying the prescribed period shall be liable to be quashed. The relevant portion in the said judgment would be as follows:- "7... The course adopted by the learned Judge, Family Court is not sanctioned in law. He has proceeded on the basis that since the parties wanted divorce by consent that has to be at once granted. Procedure for divorce by mutual consent is laid down in Section 13-B. Requirements mandated by Section 13-B of the Act could not have been given go bye by the learned Judge, Family Court. The motion for divorce by mutual consent, before accepted to crystallise into a decree has to pass through the waiting period. Instance acceptance is not permissible. Added to that legal infirmity, there is another fallibility in the decision." 11. The provisions of Section 13 (B) is essential by extracted for better consideration. The motion for divorce by mutual consent, before accepted to crystallise into a decree has to pass through the waiting period. Instance acceptance is not permissible. Added to that legal infirmity, there is another fallibility in the decision." 11. The provisions of Section 13 (B) is essential by extracted for better consideration. 13-B. 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 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-section (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." 12. In Sub-section(1), it has been stated that the petition seeking for mutual divorce may be presented on the ground that have been living separately for a period of one year or more and that they have not been able to live together and have mutually agreed that the marriage should be dissolved. The said ingredients of Sub-section(1) would go to show that after solemnisation of the marriage there should be a separate living and the separation should be either for one year or more. Therefore, such a petition for divorce on mutual consent may be presented by the parties when there was a separation for more than one year. If really the dispute arose on the date of marriage the application ought to have been filed after one year from the date of marriage. Therefore, such a petition for divorce on mutual consent may be presented by the parties when there was a separation for more than one year. If really the dispute arose on the date of marriage the application ought to have been filed after one year from the date of marriage. As far as this case is concerned, the petition was presented by both the parties on 16.11.2007, within 10 months, and there was no reference as to the date of broke down of marriage or the date of commencement of separate living in the petition. Admittedly,one year or more than one year period of separation has been pleaded which is not factually correct. However, the lower court has taken the petition on file. On 12.02.2008, the Court has passed an order of divorce in the presence of both parties. The order of the court passed on 12.02.2008 would be as follows:- "Both parties present.I.A.No.132/08 allowed.6 months period waived. Both parties filed proof affidavits. Perused. All the attempts made for conciliation ended in vain. The marriage between the parties had broken in unequivocal terms and possibility fo revival of matrimonial relationship is practically nil. Hence prayer of the petitioner for divorce by mutual consent conceded. Hence the petition allowed." 13. Admittedly, the said order was passed before the lapse of six months period. The lower court had passed an order for waiving six months period in I.A.No.132 of 2008, on the same day, for the reason that the marriage between the parties had broken in unequivocal terms and possibility of revival of matrimonial relationship is practically nil. Whether such reasoning can be accepted and whether the conditions imposed for granting a decree has been lawfully complied by the lower court, is the question. The conditions for passing the order of divorce by mutual consent would be as follows:- The granting of the decree in a properly presented petition as above is not a matter of discretion with the court, but the court shall pass a decree subject to the provisions of the Act-and after following the procedure and in the manner prescribed by sub-s(2). These are: (i) Both the parties must apply to the court not earlier than six months of the presentation of the petition and not later than 18 months after that date that the petition may be heard and decree dissolving the marriage may be granted; (ii) the court must give a hearing to the parties; (iii) the court may make such inquiry into the correctness of the grounds set out in sub-s (1); (iv) the court must thereafter be satisfied that the marriage of the parties had been solemnised after the Act came into force in 1955 and that the averments in the petition are true?" 14. In the judgment of Hon'ble Apex Court reported in 2009(5) CTC 467 (Anil Kumar Jain v. Maya Jain), it has been laid down as follows:- "17.In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution of Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the Civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955." 15. In the aforesaid judgment, it has been clearly mentioned that the Civil Court has no power to apply the principle of irretrievable break down of marriage and to pass an order of divorce by consent before the lapse of six months period under the provisions of Section 13 (B) (2) of the Hindu Marriage Act. In the aforesaid judgment, it has been clearly mentioned that the Civil Court has no power to apply the principle of irretrievable break down of marriage and to pass an order of divorce by consent before the lapse of six months period under the provisions of Section 13 (B) (2) of the Hindu Marriage Act. The proof affidavit stated to have been filed by the parties were said to have been perused but the lower court did not verify as to whether those allegations are true by examining the parties as PWs and an enquiry was not conducted by the lower court. The order passed by the lower court is not only a shortfall but is in violation of the provisions of Section 13 (B) of the Hindu Marriage Act. Therefore, I cannot find any reason to support the order passed by the lower court in granting a decree by mutual consent. 16. It is the contention of the learned counsel for the respondent that the compliance of Section 13(B) (2) need not be strictly complied with. For that, he has relied upon a judgment of High Court of Punjab and Haryana reported in AIR 1987 P&H 191 (Smt.Krishna Khetarpal v. Satish Lal). The relevant portion relied upon by him is as follows:- "15. In Ritu Sobha v. Dr.Dharampal, FAO @ page-PunjHar 196 No.33-M of 1985, a Division Bench consisting of D.S.Tewatia and Surinder Singh, JJ, decided at the motion stage on 2nd Nov, 1985, allowed the divorce under S.13B of the Act at the appellate stage: The Bench observed: * Reported in 1986 Marr LJ 179 "In view of the fact that the parties have been living separately for a period of more than a year, which fact is evidence from the findings of the matrimonial court and the parties having now desired to secure a decree of divorce by mutual consent in terms of S.13B of the Hindu Marriage Act and having made statements to that effect in Court we are inclined to declare their marriage dissolved and grant a decree of divorce without waiting for the period of six months as envisaged in Sub-Sec.(2) of S.13-B of the Hindu Marriage Act as the said period is merely meant to give time to the parties for rethinking." ................. 16. ................. 16. ................. The fact of fruitful years in human life being short and the possibility of the litigating parties rearranging their lives after the divorce by mutual consent, also seem to have been the pervasice factors when this Court granted instant relief without letting the parties to go in for another bout of litigation in the processual mill." 17. On the foot of the dictum laid down by the aforesaid judgment, it was argued that there is no reason to wait for six months period to pass a decree of divorce by mutual consent. 18. It is the further objection raised by the respondent that in a consent decree, if fraud has been pleaded for obtaining such consent, review alone would lie and for that principle, AIR 2003 AP 32 (Smt.Anitha v. R.Rambilas), is relied upon. The relevant passage would run as follows:- "18. By reading the judgments of the Apex Court, we have no hesitation in holding that the review/recall petition would not lie. If the evidence on record discloses that one party has played fraud on the other party, in such event the only remedy left over to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud. But if it is proved that one of the party has played fraud on the Court, then only the review petition is maintainable under Section 151, C.P.C." 19. As per the aforesaid judgment, it was argued that the revision preferred by the petitioner cannot be maintained since she was also a party to the proceedings. 20. In the earlier paragraphs, I have discussed that this Court is a supervisory Court to monitor the lower courts regarding the compliance of procedural laws and enforcement of law in the procedures followed by them and hence, this Court is entitled to interfere with the order, where the provisions of law were not complied strictly by the lower court under Article 227 of the Constitution of India. Therefore, the said arguments advanced by the learned counsel for the respondent is not sustainable. 21. Therefore, the said arguments advanced by the learned counsel for the respondent is not sustainable. 21. In view of the judgment rendered by the Hon'ble Apex Court reported in 2009(5) CTC 467 (Anil Kumar Jain v. Maya Jain) , civil courts as well as this Court have no power to overlook the six months period contemplated under Section 13(B) (2) of the Hindu Marriage Act, on the basis of irretrievable conditions prevailed in between the parties and to pass a decree of divorce by mutual consent. In the light of the judgment of Hon'ble Apex Court, the judgment of Punjab and Haryana, is not a good law. 22. In view of the fact that the petition itself has been filed before lapse of one year period of separation, the court has to go into the truth and genuineness of the contents of the petition and to pass orders through an order of remand. In view of the fact that the filing of the petition which is not in accordance with law and the decree of divorce by mutual consent has been ordered violating the provisions of Section 13 (B) of the Act and the principles laid down by the Hon'ble Apex Court, there is no other option for this Court to accept the contents of the revision petitioner to interfere with the orders passed by the lower court and to set aside the same. 23. In fine, I am of the considered view that the order passed by the lower court is not in accordance with law and therefore, it is set aside and the civil revision petition is ordered accordingly. Consequently, connected miscellaneous petitions are closed. No costs.