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2014 DIGILAW 3146 (MAD)

IN RE: R. JEGANNATHAN v. .

2014-09-05

R.MALA

body2014
JUDGMENT : R. Mala, J. The Civil Revision Petition has been filed against the return of I.A.SR. No. 4635 of 2014 in O.P. No. 1737 of 2014 to dispense with six months' cooling period while filing Application under Section 13-B of Hindu Marriage Act. Learned Counsel for the Petitioners submitted that the marriage between the Petitioners 1 & 2 were performed on 25.1.2006. Due to difference of opinion, the First, Petitioner/husband filed O.P. No. 2519 of 2011 on the file of the Principal Family Court, Chennai, for divorce on the ground of cruelty and desertion. Likewise, the Second Petitioner/wife has also filed O.P. No. 2918 of 2012 for divorce on the ground of cruelty and desertion (i.e.) the same relief as sought for by her husband. It is further submitted that, the father of the Second Petitioner/wife has given a Complaint against the First Petitioner and his parents before W-19, All Women Police station, Adyar and the case has been registered under Sections 498-A, 294(b), 323 & 506(i), I.P.C., on 9.4.2010. So the First Petitioner and his parents filed a Quash Application under Section 482 of Cr.P.C. in Crl. O.P. No. 25867 of 2013 for quashing F.I.R. At the time of enquiry on Crl. O.P. No. 25867 of 2013, the matter was referred to the Tamil Nadu Mediation and Conciliation Centre, High Court, Chennai, wherein the matter was settled between both the patties and it was agreed by them to file Petition under Section 13-B of Hindu Marriage Act for divorce of mutual consent. In pursuance of the same, mediation agreement has been entered into between First and Second Petitioners on 29.4.2013 and immediately the Petitioners appeared before the Principal Family Court, Chennai and filed an Application under Section 13-B of the Hindu Marriage Act for divorce on mutual consent and at the time of filing the same, they filed the Application for dispensed with six months cooling period as contemplated under Section 13-B of the Hindu Marriage Act. But the Trial Court returned that Petition. 2. The point to be decided is that whether six months' cooling period is mandatory and whether it can be dispensed with? (i) Admittedly, the marriage between both the Petitioners herein was performed in the year 2006. The matrimonial dispute arose between them from 2010 onwards. But the Trial Court returned that Petition. 2. The point to be decided is that whether six months' cooling period is mandatory and whether it can be dispensed with? (i) Admittedly, the marriage between both the Petitioners herein was performed in the year 2006. The matrimonial dispute arose between them from 2010 onwards. (ii) The Divorce Application on mutual consent was filed on the basis of the agreement arrived at between the parties before the Mediation and to give complete justice, by invoking Article 227 of the Constitution of India, whether the cooling period has been dispensed with. The intention of the legislature for granting six months' time is as to whether there is any possibility for the spouse to be reunion. But the marriage has broken down irretrievably and both the parties are in logger head, not only in matrimonial dispute, also Criminal proceedings and at that time only, the matter was referred to Mediation and the Agreement has been entered into between the parties. 3. Under such circumstances, learned Counsel for the Petitioner sought for allowing the Application for dispensing with six months' cooling period for recording evidence and granting divorce by mutual consent. 4. Mr. V. Sivakumar, learned Counsel is appointed as an Amicus Curiae to assist the Court to arrive at a correct conclusion. Now it is appropriate to incorporate Article 227 of the Constitution of India and Section 13-B of the Hindu Marriage Act: "227. Power of superintendence over all Courts by the High Court.--[(1) Every High Court, shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.] (2) Without prejudice to the generality of the foregoing provision, the High Court may-- (a) Call for returns from such Courts; (b) Make and issue general Rules and prescribe Forms for regulating the practice and proceedings of such Courts; and (c) Prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts. (3) The High Court, may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to Attorneys, Advocates and Pleaders practising therein: Provided that any Rules made, Forms prescribed or Tables settled under Clause (2) or Clause (3) shall not be inconsistent with the provision of any law for the time being in force and shall require the previous approval of the Governor. (4) Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any Court or Tribunal constituted by or under any law relating to the Armed Forces." "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 (68 of 1916) 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.]" 5. Learned Amicus Curiae has relied upon the following Judgments: (i) In the Apex Court judgment reported in Anil Kumar Jain Vs. Maya Jain, AIR 2010 SC 229 , wherein it was held that 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 & 13-B of the Hindu Marriage Act, 1955. Maya Jain, AIR 2010 SC 229 , wherein it was held that 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 & 13-B of the Hindu Marriage Act, 1955. (ii) In Anjana Kishore v. Puneet Kishore, 2002 (10) SCC 194, wherein it has been held that a direction has been given to the Family Court to dispense with six months period. So it is appropriate to incorporate Para 3, which reads as follows: "3. In view of the developments, which have taken place during the pendency of proceedings in this Court, we decline to transfer the case from the Family Court at Bandra, Mumbai to the Family Court at Saharanpur. We, however, direct that as agreed to by learned Counsel for the parties, a Joint Petition shall be filed by the parties before the Family Court at Bandra, Mumbai for grant of divorce by mutual consent. Terms of compromise as filed before us shall also accompany the Joint Petition. An Application for curtailment of time for grant of divorce shall also be filed along with the Joint Petition. On such Application being moved the Family Court may, dispensing with the need of waiting for six months, which is required otherwise by sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955, pass final order on the Petition within such time as it may deem fit. This direction, we are making under Article 142 of the Constitution, as looking at the facts and circumstances of the case emerging from pleadings of the parties and disclosed during the course of hearing, we are satisfied of the need of making such a direction to do complete justice in the case......." The above Three Judges Judgment is to render complete justice and six months' cooling period has to be dispensed with. 6. Learned Amicus Curiae submits that to do complete justice, the Court can dispense with the cooling period of six months and to substantiate the same, he relied upon the Apex Court Judgment reported in B.C. Chaturvedi Vs. 6. Learned Amicus Curiae submits that to do complete justice, the Court can dispense with the cooling period of six months and to substantiate the same, he relied upon the Apex Court Judgment reported in B.C. Chaturvedi Vs. Union of India and others, AIR 1996 SC 484 , wherein it was held that the High Court has inherent power to do complete justice between the parties similar to the power conferred under Article 142 of the Constitution of India. It is appropriate to incorporate Paras 21 & 23 of the above decision, which runs as follows: "21. The first of these relates to the power of the High Court to do "complete justice", which power has been invoked in some cases by this Court to alter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Courts. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such Decree or Order as deemed necessary; it would be wrong to think that other Courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the poverty of the person concerned. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a Parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such a case being made out... 22. ... ... ... 23. ........I would say that power to do complete justice also inheres in every Court, not to speak of a Court of plenary jurisdiction like a High Court. Of course, this power is not as wide which this Court has under Article 142. That, however, is a different matter." In the above decision, it was specifically mentioned that the High Court, has every power to pass an appropriate Order to do complete justice. 7. Of course, this power is not as wide which this Court has under Article 142. That, however, is a different matter." In the above decision, it was specifically mentioned that the High Court, has every power to pass an appropriate Order to do complete justice. 7. The above dictum has been followed by our Division Bench Judgment in Para-11 of W.P. No. 24535 of 2013, dated 30.9.2013, which runs as follows: "11. ... ... ... The Supreme Court in the decision reported in B.C. Chaturvedi Vs. Union of India and others, AIR 1996 SC 484 , approved the Full Bench Judgment of the Orissa High Court reported in Krishna Chandra Pallai Vs. Union of India (UOI) and Another, AIR 1992 Ori 261 , and held that the High Court being a Court of plenary jurisdiction, has inherent power to do complete justice between parties similar to Supreme Court's power under Article 142 of the Constitution of India. In the decision reported in Union of India (UOI) and Others Vs. R. Reddappa and Another, (1993) 4 SCC 269 , the Hon'ble Supreme Court held that once the Court is satisfied of injustice or arbitrariness, then the restrictions, self-imposed or statutory, stands removed and no rule of technicality or exercise of power can stand in way of rendering justice. Giving equal treatment to similarly placed persons without discrimination is the fundamental right guaranteed in the Constitution and the law Courts are bound to protect the said right." In the above Judgment, it was held that once the Court is satisfied of injustice or arbitrariness, then the restrictions, self-imposed or statutory, stands removed and no rule of technicality or exercise of power can stand in way of rendering justice. 8. Considering the aforestated circumstances of the case along with the above decisions, there was a matrimonial dispute between both the parties from the year 2011 onwards. The husband has filed a Petition for divorce on the ground of cruelty and desertion in O.P. No. 2519 of 2011 on 19.7.2011 and the wife has also filed a Petition for divorce on the same ground of cruelty and desertion in O.P. No. 2918 of 2012 on 8.8.2012. The husband has filed a Petition for divorce on the ground of cruelty and desertion in O.P. No. 2519 of 2011 on 19.7.2011 and the wife has also filed a Petition for divorce on the same ground of cruelty and desertion in O.P. No. 2918 of 2012 on 8.8.2012. The father of the Second Petitioner/wife has lodged a Complaint on 9.4.2010 against the First Petitioner and his parents before W-19, All Women Police Station, Adyar and the case has been registered under Sections 498-A, 294(b), 323 & 506(i), I.P.C. on 9.4.2010 (i.e.) before filing of the Divorce Petitions, to quash the same, the husband along with his parents filed the Quash Petition in Crl. O.P. No. 25867 of 2013 before this Court. During that period, the matter was referred to mediation and during mediation, the matter was settled between both the parties amicably and they agreed to file the Divorce Petition on mutual consent. Thereafter, both the Petitioners filed the Application for divorce on mutual consent. Hence, the object of the cooling period of six months is to retrieve the difference of opinion between the parties. But here, there is no chance for reunion. Because already both the parties are waiting for a long period and only in the Mediation, the matter was settled. In such circumstances, I am of the view, to render complete justice to the parties, six months' cooling period mentioned under Section 13-B(2) of the Hindu Marriage Act is not a bar to grant mutual consent immediately. 9. Furthermore, on considering the Agreement entered by the parties before the Mediation and on that basis only, Divorce Petition on mutual consent has been filed, this Court is of the opinion that six months' cooling period under Section 13-B(2) of the Hindu Marriage Act is hereby dispensed with and the Principal Family Court, Chennai, is directed to record the evidence of both the parties and dispose of the Petition filed under Section 13-B of the Hindu Marriage Act in accordance with law. 10. At this juncture, the learned Amicus Curiae Mr. V. Sivakumar submitted that he does not seek any remuneration for his service. This Court appreciated his valuable assistance in this matter. With the above direction, the Civil Revision Petition is disposed of. No costs.