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2012 DIGILAW 780 (ALL)

Rekha Devi v. Abhishek Misra

2012-03-30

SHABIHUL HASNAIN

body2012
JUDGMENT : This is an appeal from order under Section 28 of the Hindu Marriage Act, 1957 read with Section 19 of the Family Court Act against the judgment and decree dated 25.7.2011 passed by the Additional District Judge, Room No. 1, District Sultanpur in Regular Case No. 687 of 2010 (Smt. Rekha Devi v. Abhishekh Misra) wherein the appeal has been dismissed. 2. The appellant has prayed for setting aside the judgment and decree on a number of grounds but the main ground taken by the appellant is that the suit has been dismissed despite No objection from the husband opposite party. The learned court below was of the opinion that suit for divorce could not have been allowed under the provision in which it was filed. The learned court below was of the view that on the grounds mentioned in the suit a decree on the basis of mutual consent could not have been issued. It was observed that for this purpose a regular suit under Section 13B of the Hindu Marriage Act should have been instituted. Mutual consent can not be a ground for getting a divorce under the provisions in which the suit was filed. 3. This court feels that the order of learned court below can not be faulted on any count and there is no scope of interference with the impugned order. There is no doubt that there is specific provision for obtaining the divorce by mutual consent under Section 13 B of the Hindu Marriage Act. Accordingly the line of reasoning taken by the court below was absolutely correct. 4. On the last occasion when the case was taken up Mr. Vinay Misra counsel for the appellant and counsel for the respondent Sri K.K. Verma both had appeared. Both the counsel had made a prayer in unison to this court that their respective clients do not want to live together any further. They prayed that they may not be relegated to the family court again for pursuing a case under Section 13 B of the Hindu Marriage Act. It was informed that the husband and wife were well educated and professionally qualified. They were mature enough to take a serious decision. It was further informed that the marriage was solemnized in the year 2006. Admittedly the husband and wife are not living together since 2007. It was informed that the husband and wife were well educated and professionally qualified. They were mature enough to take a serious decision. It was further informed that the marriage was solemnized in the year 2006. Admittedly the husband and wife are not living together since 2007. The suit for divorce was filed in the year 2010. The same has been decided in 2011. For convenience paragraph 13 B of the Hindu Marriage Act is being quoted here below :- {13B. 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 solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 ( 68 of 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 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.} 5. It was further submitted that even from the inception of the suit till today a considerable period of two years has passed. It was prayed that the parties may not be forced to undergo the trauma of litigation by filing the suit under Section 13B before the Family Court. It was also argued that all the requirements of Section 13B as well as Section 14 of the said Act are satisfied in the instant case. Section 14 of the Hindu Marriage Act prohibits any court to entertain any petition for dissolution of any marriage by a decree of divorce (unless at the date of presentation of the petition one year has elapsed) since the date of the marriage. Section 14 of the Hindu Marriage Act prohibits any court to entertain any petition for dissolution of any marriage by a decree of divorce (unless at the date of presentation of the petition one year has elapsed) since the date of the marriage. Sub- Section 2 of Section 14 also provides that proper regard should be given for the future of the children, if any. In the present case the wife and husband do not have any children. 6. Normally the matter should have been relegated to the Family Court but the court feels that law and judicial process has to change with the change of times. Unless we keep pace with the requirement of times the system will be rendered obsolete. Extra-judicial methods will be adopted by the people of this country. The faith of the people in the judicial system has to be kept alive. It is the duty of the court to interpret the laws in such a manner that justice could be procured to the litigants speedily. A stitch in time saves nine. Matrimonial matters are different from property disputes. They should be decided very carefully having regard to the mental torture which the parties have to undergo when the marriages are broken. 7. Considering the prayer, the court asked the respective counsel to call the parties before the court. A date was fixed and today both the husband and wife are present in the court. They have been identified by their respective counsel. The husband and wife were separately questioned whether they could live together any more or not? Each of them replied very clearly, boldly and precisely. There was a very definite No to this proposal. They also personally requested the court for indulgence and relive them of the torture of living together. They stated that their life has become hell and the heat was becoming unbearable. They pleaded a shower of mercy by dissolving their marriage at the earliest. 8. The court gave its anxious consideration to their combined prayer. A conclusion was drawn that all the requirements of Section 13B have been met in this case. Respective parties got married in 2006 and after a very short time they started living separately. This fact is admitted by both the parties. Meanwhile they were not in touch with each other for even a short period. A conclusion was drawn that all the requirements of Section 13B have been met in this case. Respective parties got married in 2006 and after a very short time they started living separately. This fact is admitted by both the parties. Meanwhile they were not in touch with each other for even a short period. This has been stated by them in the open court. They have no children. The suit was filed in the year 2010. Thus, the requirement of Section 14 of the Hindu Marriage Act is also complete. Even after filing of the regular suit till date they are not living together. We are in the month of March, 2012. The husband and wife both are educated. The wife is Post- Graduate in Taxation while the husband is M.B.A. in Marketing. They want to start their life afresh. 9. The purpose for granting time to live separately was to ensure that the parties have not taken a decision for divorce in haste. It was thought that if they are allowed some time to live together then tempers may cool down and they may be able to see the things more clearly and in a pragmatic manner. On the other hand if they are able to live separately for a specified time without any contact during this period then their decision would appear to be of determination. In such a condition it can be believed that their marriage has broken down irretrievably. 10. In the present case both the parties have made a statement before the court that they are not living together for the last 5 years. When both the parties are before the court there is no reason to disbelieve them. If educated people like the present one, after living separately for a long period are to be sent back to the lower court for technical formalities. Perhaps it will defeat the purpose of Section 13B of the Hindu Marriage Act. 11. In Swati Verma (Smt.) v. Rajan Verma and others a case reported in 2004 Supreme Court Cases 123 : (AIR 2004 SC 161) the Hon’ble Supreme Court in para Nos. 6 and 7 has observed as follows : 6. Perhaps it will defeat the purpose of Section 13B of the Hindu Marriage Act. 11. In Swati Verma (Smt.) v. Rajan Verma and others a case reported in 2004 Supreme Court Cases 123 : (AIR 2004 SC 161) the Hon’ble Supreme Court in para Nos. 6 and 7 has observed as follows : 6. Pursuant to the compromise deed, an application has been filed before this Court under Section 13-B of the Hindu Marriage Act and under Article 142 of the Constitution praying that this Court may exercise its extraordinary jurisdiciton under Article 142 of the Constitution and dissolve the marriage by a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976. The petitioner and Respondent 1 have stated in the said application that their marriage has broken down irretrievably and there is no chance of their living together, and therefore, they have mutually agreed that the marriage should be dissolved. It is further declared that mutual consent has not been obtained by force, fraud or inducement. 7. Having perused the records placed before us, we are satisfied that the marriage between the parties has broken down irretrievably and with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, were allow the application for divorce by mutual consent filed before us under Section 13-B of the Hindu Marriage Act and declare that the marriage solemnized between the consenting parties on 30.6.2001 at Delhi is hereby dissolved and they are granted a decree of divorce by mutual consent. 12. Similarly in the case of Rajiv R. Hiremath v. Uma (Smt.), (2000) 10 Supreme Court Cases 393 the Hon’ble Supreme Court issued directions that the petition for divorce was to be converted into a petition under Section 13B of the Hindu Marriage Act, 1955 for divorce by mutual consent and appropriate orders were to be passed by Family Court (at Bangalore) for dissolving the marriage. 13. Sri Vinay Misra has filed a Supplementary Affidavit which is taken on record. 13. Sri Vinay Misra has filed a Supplementary Affidavit which is taken on record. Along with this affidavit a deed of compromise has been filed duly approved and verified by the husband and wife. 14. The institution of marriage between a man and woman was envisaged for a happy companionship. In the country like India both were considered to be complementary to each other. The home of a happily married couple was considered to be a Heaven. The statutory provisions have always tried to protect such an institution. Divorce was considered as an exception. Unfortunately in the present case dissolution of marriage appears to be the only way to provide peace of mind and future to the young warring parties. Justice in the present case lies in protecting their lives separately rather than forcing them to live together under stress and frustration. 15. Considering all the facts and circumstances the court dissolves the marriage between the parties dated 19.9.2006. The parties shall be free to live separately and shall be considered divorced for all legal and practical purposes from today. 16. The first appeal is thus, disposed of in terms of the order. Order accordingly.