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2014 DIGILAW 19 (RAJ)

Rajesh Kumar Sharma v. Preeti Sharma

2014-01-02

MOHAMMAD RAFIQ

body2014
Rajesh Kumar Sharma, Petitioner and Smt. Preeti Sharma, Respondent No.1 are present in person Hon'ble RAFIQ, J.—This writ petition has been filed by petitioner-Rajesh Kumar Sharma with the prayer that Family Court, Alwar be directed to pass a decree of divorce on the basis of a mutual consent of the parties within three months or alternatively, this Court may pass a decree of dissolution of marriage on the basis of mutual consent between the parties. 2. Petitioner and respondent No.1, husband & wife respectively, contacted marriage as per Hindu customs and rites on 18/11/2000 at Bawal, District Rewari (Haryana). They lived together for about seven years but then differences started between them. Thereafter, they started living separately. They filed criminal cases as also the civil cases against each other in the courts at Behror, Alwar and Haryana regarding domestic violence, division of property, divorce and other matrimonial cases pertaining to offence u/Ss.498A and 406 IPC. Eventually, however, being persuaded by the family members and friends, both of them agreed to obtain decree of divorce with mutual consent on the terms and conditions acceptable by both the parties. A written document was prepared for such agreement. Father of the petitioner and brother of respondent No.1 were also witnesses to such mutual agreement. It was agreed that petitioner husband shall pay to the respondent wife a sum of Rs.20,00,000/- as one time alimony in two installments of Rs.10,00,000/- each. In lieu thereof, respondent wife shall withdraw all the cases in various courts and sought divorce on mutual consent. Petitioner in compliance of the aforesaid agreement, handed over a demand draft of Rs.10,00,000/- to the respondent wife on 27/08/2013 as first installment. Another demand draft of Rs.10,00,000/- in lieu of second installment was also prepared on 12/11/2013 to be given to the respondent wife after passing of the decree of mutual divorce. Copy of the agreement dated 27/08/2013 has been placed on record. 3. Petitioner filed an application before the Additional District and Sessions Judge, Behror on 19/11/2013 that petitioner-husband and respondent No.1-wife wanted to live separately and have settled their dispute out of the court and therefore petitioner was seeking permission to withdraw the divorce petition filed under Section 13B of the Hindu Marriage Act with liberty to move an application under Section 13 of the Hindu Marriage Act seeking decree of divorce by mutual consent. They have also stated in the application that their marriage had suffered a irretrievable breakdown and they have agreed for mutual decree of divorce and that there is no possibility of their living together and therefore decree of mutual divorce may be passed by waiving the waiting period of six months as envisaged by Section 13B(2) of the Hindu Marriage Act. The said application was allowed. It was thereafter that respondent-wife filed an application u/S.13B of the Act before the Family Court, Alwar on 27/11/2013 by appearing in person with request that decree of divorce may be passed on the basis of mutual consent. The Family Court, Alwar directed that the matter be listed on 7/7/2014 after waiting period of six months expired. Aggrieved thereby, petitioner has approached this Court. 4. Shri R.D. Sharma, learned counsel for the petitioner has argued that period of waiting of six months as envisaged by Section 13B(2) of the Hindu Marriage Act, 1955 in the facts of the present case be deemed to commence from the date of filing of the petition of divorce under Section 13 by the petitioner before Additional District and Sessions Judge No.1, Behror in the year 2011. Learned counsel has referred to the certified copy of the application dated 29/11/2013 and the order of the same date passed by the said court allowing permission to the petitioner to withdraw the divorce petition. Even then fact remains that divorce petition filed at the instance of the husband is pending for more than two years and thus divorce petition was withdrawn. In the application, it was stated that the parties have agreed to seek consent decree of divorce and wanted to file an application before the Family Court Alwar under Section 13B. The court has permitted withdrawal of the petition and granted them liberty to file joint application for mutual divorce with consent. Learned counsel in support of his argument has relied on the Division Bench judgment of the Punjab & Haryana High Court in Arun Chawla vs. Smt.Reena : 1997(2) All India Hindu Law Reporter 694. 5. Shri Naveen Kumar Sharma, learned counsel appearing for respondent No.1 has also supported the arguments made by the learned counsel for the petitioner. 6. Petitioner-Rajesh Kumar Sharma and respondent No.1-Smt.Preeti Sharma are present in court. They have been identified by their respective counsel. 5. Shri Naveen Kumar Sharma, learned counsel appearing for respondent No.1 has also supported the arguments made by the learned counsel for the petitioner. 6. Petitioner-Rajesh Kumar Sharma and respondent No.1-Smt.Preeti Sharma are present in court. They have been identified by their respective counsel. They submit that there is no possibility of rapprochement and consent decree of divorce be passed in the terms as prayed for. 7. I have given my anxious consideration to the rival submissions made at the bar and perused the material on record as also the cited judgment. 8. Indisputably, in the present case, the matrimonial dispute between the parties had been going on for last more than five years. It is also not in dispute that the divorce petition under Section 13 of the Hindu Marriage Act was filed by the petitioner in the court of learned Additional District and Sessions Judge No.1, Behror in the year 2011 and it is during the pendency of divorce petition that settlement was arrived at between the petitioner-husband and respondent No.1-wife through the intervention of their relatives and friends. Copy of that settlement is placed on record at Ann.2. In the settlement, both the parties agreed to withdraw all cases filed by them against each other and also on the quantum of permanent alimony and the modality in which it was to be paid. It was agreed that petitioner husband shall pay to the respondent wife a sum of Rs.20,00,000/- as one time alimony in two installments of Rs.10,00,000/- each. In lieu thereof, respondent wife withdrew all the cases in various courts and sought divorce on mutual consent. Petitioner in compliance of the aforesaid agreement, handed over a demand draft of Rs.10,00,000/- to the respondent wife on 27/08/2013 as first installment. Another demand draft of Rs.10,00,000/- in lieu of second installment was also prepared on 12/11/2013 to be given to the respondent wife after passing of the decree of mutual divorce. Copy of the agreement dated 27/08/2013 has been placed on record. 9. Pursuant to the aforesaid agreement, petitioner filed application. On application of the petitioner, he was allowed to withdraw the divorce petition filed before the Court of Additional District Judge, Bahror under Section 13 of the Hindu Marriage Act, 1955 by order dated 19/11/2013 with liberty to file application for mutual divorce by consent before the Family Court, Alwar. 9. Pursuant to the aforesaid agreement, petitioner filed application. On application of the petitioner, he was allowed to withdraw the divorce petition filed before the Court of Additional District Judge, Bahror under Section 13 of the Hindu Marriage Act, 1955 by order dated 19/11/2013 with liberty to file application for mutual divorce by consent before the Family Court, Alwar. They filed application but same has been deferred for six months till 7/7/2014 in view of the provisions of Section 13B(2) of the Hindu Marriage Act, 1955. 10. Parliament by Amendment Act No.68 of 1976 for the first time introduced provisions of decree of divorce by mutual consent in Section 13B supra. It would be apposite to reproduce provisions of sub-Section (2) thereof as under:- “(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.” 11. In view of abovequoted provision, a petition for divorce by mutual consent can be filed by husband and wife on the premise that they have living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed that marriage should be dissolved. Sub-sec. (2) of Sec. 13B however stipulates that on motion of both the parties in less than six months after the date of the presentation of the petition referred in sub-sec. (1) and not later than eighteen months after that date, if the petition is not withdrawn, the court on being satisfied after hearing the parties and after making such inquiry as it things fit, that a marriage has been solemnized and averments made in the petition, pass a decree declaring a marriage to be dissolved with effect from the date of decree. 12. 12. Delhi High Court in Krishna vs. Attar Singh : 1992(1) Divorce & Matrimonial Cases 670 was dealing with a case where marriage was solemnized on 16/11/1983. Wife filed an application seeking dissolution of marriage on the ground of cruelty. That petition was dismissed on 20/3/1990. The parties were however living separately. Subsequently, an application was filed under Section 13B(2) for grant of divorce by mutual consent. The High Court taking note of the fact that both the parties are living separately and no useful purpose would be served by continuing acrimonious litigation, allowed the application and granted decree of divorce by mutual consent without requiring them to wait for a further period of six months. 13. Madhya Pradesh High Court also in Padmini vs. Hemant Singh : 1994(1) DMC 465 held that Section 13B of the Act is a procedure, which is handmaid of justice. It held that ingredients of mutual consent are fully satisfied. Time table fixed by Section 13B(2) does not apply to appellate court and imposes no fetters on its power. 14. This Court in Hari Prakash Mishra vs. Smt.Shakuntala Mishra : 1995(1) All India Hindu Law Reporter 139 (Raj.) has held that when there are no chances that the parties resuming their marital life and that keeping in view the fact that there is no collusion between the parties, decree of divorce and dissolution of marriage can be granted with immediate effect. 15. The Division Bench of Punjab and Haryana High Court in Harpal Singh vs. Smt.Shakuntala : 1994(2) All India Hindu Law Reporter 622 (Pb. & Hry.) was dealing with a case, wherein a petition under Section 13B was dis-missed by the first court and appeal thereagainst was pending before the High Court. The parties arrived at a settlement during the pendency of the appeal and filed a joint application under Section 13B requesting for mutual decree of divorce. The court being satisfied there was no chance of their living together, allowed the application and granted decree of divorce on mutual consent. 16. In the present case too, facts are that petition for divorce at the instance of husband was also filed and remained pending for more than two years, albeit before the court of Additional District and Sessions Judge No.1, Behror. 16. In the present case too, facts are that petition for divorce at the instance of husband was also filed and remained pending for more than two years, albeit before the court of Additional District and Sessions Judge No.1, Behror. That petition was allowed to be withdrawn with liberty to the parties to move an application for obtaining decree of mutual divorce by consent before the Family Court, Alwar. The proceedings both, in earlier court and the subsequent court were thus between the same parties have to be accepted in continuation. The intention of the legislature in sub-Section (2) of Section 13B in providing a waiting period of six months is to give time to the parties to explore the possibilities of rapprochement between them. Since in this case, parties have been living separately for last 5-7 years, waiting period of six months envisaged in sub-Section (2) of Section 13B of the Act supra, should be taken to have been satisfied as litigations between each other for decree of divorce remained pending for last more than two years. 17. If the parties have decided to live separately without waiting for the period of six months and on the basis of the agreement arrived at between them that petitioner shall pay a sum of Rs.20,00,000/- to the respondent-wife as permanent alimony, against which, petitioner already paid a sum of Rs.10,00,000/- as first installment to the respondent-wife and demand draft for the second installment of Rs.10,00,000/-was ready to be given to her and thus paid the entire amount of alimony, this Court is satisfied that marriage of the petitioner and respondent No.1 had suffered a irretrivable breakdown and there are now no chances of re-union, there is therefore no justification for applying of making them to wait for another six months. They cannot be therefore made to suffer agony of a failed marriage for six more months. In the facts like this, this Court would be justified to grant waiver of the statutory cooling period of six months. 18. In view of above, the writ petition succeeds and the same is allowed. Petition for mutual divorce filed before the Family Court, Alwar stands allowed. The marriage between petitioner-husband and respondent No.1-wife is therefore dissolved by mutual consent with immediate effect. Parties to bear their own costs.