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2014 DIGILAW 516 (KER)

Sindhu K. Rajan v. M. Ajith

2014-07-04

A.HARIPRASAD, V.K.MOHANAN

body2014
Judgment : A. Hariprasad, J. 1. Original Petition filed under Article 227 of the Constitution of India. Petitioner seeks the following reliefs: "i) To issue a directing (sic) the learned Judge of the Family Court, Thrissur to dispose of O.PNo.708/2014 expeditiously by waiving the 6 months period and by the next hearing date; ii) To issue such other orders, direction (sic) may be prayed for and that this Hon'ble Court may deem fit on the facts and circumstances of the case." 2. Kernel of the facts: Petitioner is the wife of the respondent. Admittedly they are Hindus governed by the Hindu Marriage Act, 1955 (in short, "the Act"). Their marriage was solemnized on 10.07.2009. 3. Nuptial euphoria did not last long. Gradually their relationship ran into rough weather. Ultimately they realised that it was impossible to live together as man and wife. There was an earlier round of litigation between the parties as the wife approached this Court with O.P.(FC) No.59 of 2014. In that proceedings, this Court directed the parties to try a chance at mediation to settle the differences. Pursuant to that direction, the parties approached the Kerala Mediation Centre. It is to be noted that other litigations were also pending between the parties. In the mediation, the parties settled all the disputes. As per the mediation settlement agreement dated 24.03.2014, executed between the parties, this Court disposed of O.P.(FC) No.59 of 2014 vide Ext.P4 judgment. A copy of the mediation settlement agreement is attached to Ext.P4 judgment. As agreed in the mediation settlement agreement, the petitioner and the respondent jointly filed a petition for divorce under Section 13B of the Act before the Family Court, Thrissur. A copy of the petition is produced and marked as Ext.P1. Ext.P2 is the interlocutory application filed by the petitioner before the Family Court requesting it to waive the six months waiting period prescribed under Section 13B(2) of the Act. Ext.P3 is the application filed before the Family Court to advance the hearing date of the petition. The Family Court did not consider these applications. Hence the petitioner has come up before this Court. 4. Heard Sri.Kaleeswaram Raj, the learned counsel for the petitioner. Noticing the binding judicial precedents applicable to the points raised in this petition, we are of the view that the matter can be disposed without sending notice to the respondent. 5. The Family Court did not consider these applications. Hence the petitioner has come up before this Court. 4. Heard Sri.Kaleeswaram Raj, the learned counsel for the petitioner. Noticing the binding judicial precedents applicable to the points raised in this petition, we are of the view that the matter can be disposed without sending notice to the respondent. 5. Learned counsel for the petitioner relied on a large body of case law to fortify his argument that the Family Court, in appropriate cases, has the power to waive the waiting period of six months prescribed under Sub-section (2) of Section 13B of the Act. We need only consider in detail the ratio in Lakshmi Prasad v. Hareesh G.Panicker (2014 (1) KLT 850), a decision rendered by a Division Bench of this Court and Priyanka Khanna v. Amit Khanna (2012 (1) KLT 249(SC)). Other decisions are rendered by various High Courts and have only persuasive value. We shall consider the scope and applicability of these decisions in the latter part of this judgment. 6. Section 13B of the Act is extracted hereunder for clarity: "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 alter 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." 7. Sub-section (1) of Section 13B of the Act is applicable to marriages solemnised before or after commencement of the amendment to the Act by Act 68 of 1976 (w.e.f. 27.05.1976). On a careful scrutiny of Subsection (1) of Section 13B of the Act, it can be seen that the cause of action for filing a petition under this provision is accrued to the parties to the marriage on the ground that they have been living separately for a period of one year or more and that they have not been able to live together. The cardinal prerequisite is that the parties have mutually agreed that the marriage should be dissolved for the aforementioned reasons. 8. The procedural steps that are to be taken after filing the petition for divorce by mutual consent are provided under Section 13B(2) of the Act. It prescribes a period of six months for making a motion for seeking relief under the Section. The outer time limit fixed for making the motion by the parties is 18 months. The provision shows that if the parties make a motion for divorce six months after the date of presentation of the petition and before the expiry of 18 months after the said date and if the petition is not withdrawn in the meantime, the court shall hear the parties and make appropriate enquiry. And on being satisfied that the grounds mentioned in Sub-section (1) of Section 13B of the Act continued even on that date and the averments in the petition are true, then the court shall pass a decree declaring the marriage to be dissolved with effect from the date of decree. It is mandatory that the court should make an enquiry as to truthfulness of the averments in the petition. Ostensible object of providing six months waiting period for making the motion by the parties is for exploring the possibility of reunion. Life span of the petition filed under Section 13B(1) of the Act is 18 months. So, the parties could, if they so choose, avail one year for reflection as to whether the marriage should be kept alive or it has to be put an end to by a decree of divorce. 9. Life span of the petition filed under Section 13B(1) of the Act is 18 months. So, the parties could, if they so choose, avail one year for reflection as to whether the marriage should be kept alive or it has to be put an end to by a decree of divorce. 9. Section 13B of the Act is no doubt subject to Section 14 of the Act, which says that it shall not be competent for any court to entertain any petition for dissolution of marriage by a decree of divorce unless, at the date of its presentation, one year has elapsed since the date of marriage. Section 14 of the Act starts with a non-obstante clause and this gives a clear indication that the time stipulation in the Section is applicable to Section 13B of the Act as well. Further more, Section 13B of the Act also says that the right to file a petition for divorce by mutual consent is subject to the provisions in the Act, thereby meaning that it is subservient to Section 14 of the Act. 10. The vexed question in this case is whether the Family Court can waive the period of six months prescribed in Section 13B(2) of the Act and allow the parties to make the motion before expiry of the said period. If the Family Court is powerless to waive the period of waiting fixed by the statute, then no direction as prayed for can be issued by this Court. 11. Learned counsel for the petitioner heavily relied on Lakshmi Prasad's case (supra) and Priyanka Khanna's case (supra). Before dealing with them, we will consider the decision of the Apex Court in Anjana Kishore v. Puneet Kishore ((2002) 10 SCC 194). Facts in that decision show that the petitioner approached the Supreme Court for transfer of the divorce petition filed by the respondent-husband before the Family Court at Bandra, Mumbai. She wanted the case to be transferred to the Family Court at Saharanpur, Uttar Pradesh. In spite of the best efforts made to amicably settle the issues, the parties were not amenable for restoring their relationship. They filed a compromise agreement before the Supreme Court. She wanted the case to be transferred to the Family Court at Saharanpur, Uttar Pradesh. In spite of the best efforts made to amicably settle the issues, the parties were not amenable for restoring their relationship. They filed a compromise agreement before the Supreme Court. Considering the subsequent developments in the matter, the Supreme Court directed the parties to file a joint petition before the Family Court at Bandra, Mumbai for grant of divorce by mutual consent under Section 13B of the Act. They were also permitted to file an application for curtailment of time for grant of divorce and on such application being moved before the Court, it was directed to dispense with the need of waiting for six months. It is clearly discernible from the decision that the Supreme Court had invoked its power under Article 142 of the Constitution of India to issue such directions. Article 142 of the Constitution of India empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Any such decree or order so passed, shall be enforcible through out the territory of India in such manner as may be prescribed. The power under Article 142 of the Constitution is meant to supplement the existing legal frame work and not supplant it. This is intended to do complete justice between the parties. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law. It has been held by the Apex Court that it is advisable to leave this power undefined and uncatalogued so that it remains elastic enough to mould reliefs to suit the given situation. The very fact that the power is conferred only upon the Supreme Court, and no one else, is itself an assurance that it will be used with due restraint and circumspection; keeping in view the ultimate object of doing complete justice between parties (see - Delhi Development Authority v. Skipper Construction Co. (P) Ltd. - (1996) 4 SCC 622 ). It has been held in various decisions by the Apex Court that the court's power to do complete justice is not confined to any statutory provision. The exercise of power is not conditioned on any statutory power because statutory provisions cannot override the constitutional provisions. (P) Ltd. - (1996) 4 SCC 622 ). It has been held in various decisions by the Apex Court that the court's power to do complete justice is not confined to any statutory provision. The exercise of power is not conditioned on any statutory power because statutory provisions cannot override the constitutional provisions. Further, it has been held that the power under Article 142(1) of the Constitution cannot be diluted merely because statutes may provide certain formalities to be fulfilled before any order could be passed (see-Mohd. Anis v. Union of India - 1994 Supp (1) SCC 145; Delhi Judicial Service Association v. State of Gujarat - (1991) 4 SCC 406 and Union Carbide Corpn. v. Union of India - (1991) 4 SCC 584 ). The Supreme Court in Anjana Kishore's case (supra) has evidently exercised its jurisdiction under Article 142 of the Constitution. Fact of the matter is that such a power is not available to any other court in the country. Hence we are of the view that the directions given by the Apex Court in Anjana Kishore's case (supra) cannot be replicated by this Court. 12. Learned counsel for the petitioner placed reliance on Priyanka Khanna's case (supra). The Supreme Court, taking cognizance of the facts that the parties were litigating from 2006 onwards and also that there were 12 cases between them at the material time, deduced from the trend of the litigations pending that it could only be considered that their relationship have broken down in a very nasty manner and that there was absolutely no possibility of a rapprochement between them even if the matter was to be adjourned for a period of six months as stipulated under Section 13B of the Act. In the peculiar facts and circumstances of the case, the Supreme Court terminated all litigations between the parties and allowed the application filed under Section 13B of the Act, thereby dissolving the marriage between the parties. Further, it is directed that a decree should be drawn up accordingly. Here also it is evident that the Supreme Court was exercising its plenary power under Article 142 of the Constitution of India. Hence, the decision cannot help the petitioner to contend that the Family Court has the power to waive the waiting period prescribed in the provision. 13. Further, it is directed that a decree should be drawn up accordingly. Here also it is evident that the Supreme Court was exercising its plenary power under Article 142 of the Constitution of India. Hence, the decision cannot help the petitioner to contend that the Family Court has the power to waive the waiting period prescribed in the provision. 13. Before we deal with Lakshmi Prasad's case (supra), we shall refer to two binding precedents of the Supreme Court relevant to the subject. Anil Kumar Jain v. Maya Jain ( (2009) 10 SCC 415 ) was a case wherein the parties to an irretrievably broken down marriage approached the Family Court with a petition under Section 13B of the Act. Learned Judge of the Family Court fixed the time for consideration of the petition after six months of its filing. After six months, the matter was taken up by the court. The appellant-husband reiterated his earlier stand that a decree of mutual divorce should be passed on account of the fact that it was not possible for the parties to live together. However, the respondent-wife had shown a volte-face to divorce and she withdrew her consent for divorce. Reckoning those facts, the trial court dismissed the petition. The matter was taken up before the High Court. Before the High Court, the respondent-wife expressed her desire to live separately from her husband, but she did not want a decree for dissolution of marriage to be passed. The High Court also dismissed the appeal taking into account the stand of the respondent-wife. Aggrieved by that judgment, the husband had approached the Apex Court. In that circumstances, the Supreme Court considered the scope and ambit of the provision and also the precedents on the point. Statement of law in paragraphs 27 to 29 of the decision is as follows: "27. In all the subsequent cases, the Supreme Court invoked its extraordinary powers under Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage-ties had completely broken and there was no possibility whatsoever of the spouses coming together again. In such a situation, this Court felt that it would be a travesty of justice to continue with the marriage ties. 28. In such a situation, this Court felt that it would be a travesty of justice to continue with the marriage ties. 28. It may, however, be indicated that in some of the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution, this question had arisen and it was held in most of the cases that despite the fact that the marriage had broken down irretrievably, the same was not a ground for granting a decree of divorce either under Section 13 or Section 13-B of the Hindu Marriage Act, 1955. 29. 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 Section 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 the 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." 14. In a subsequent decision, Manish Goel v. Rohni Goel ( (2010) 4 SCC 393 ), the Supreme court re-stated the law in respect of its power under Article 142 of the Constitution of India as one available to do complete justice, but it was observed that generally, no court has competence to issue a direction contrary to law, nor can the court direct an authority to act in contravention of the statutory provisions. It is further observed that the courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been laid down by law. 15. It is further observed that the courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been laid down by law. 15. In Manish Goel's case (supra), the Supreme Court stated further: "We are fully alive of the fact that this court has been exercising the power under Article 142 of the Constitution for dissolution of marriage where the Court finds that marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. Decree of divorce has been granted to put quietus to all litigations between the parties and to save them from further agony, as it is evident from the judgments in Romesh Chander v. Savitri, (1995) 2 SCC 7 : AIR 1995 SC 851 ; Kanchan Devi v. Promod Kumar Mittal, (1996) 8 SCC 90 :AIR 1996 SC 3192; Anita Sabharwal v. Anil Sabharwal, (1997) 11 SCC 490 ; Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226 : AIR 1997 SC 1266 ; Kiran v. Sharad Dutt (2000) 10 SCC 243 ; Swati Verma v. Rajan Verma, (2004) 1 SCC 123 : 2004 SCC (Cri.) 25: AIR 2004 SC 161; Harpit Singh Anand v. State of W.B. (2004) 10 SCC 505 : 2004 SCC (Cri.) 1911; Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410 ; Durga Prasanna Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353 : AIR 2005 SC 3297 ; Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558 : AIR 2006 SC 1675 ; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220 ; Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263 ; Samar Ghosh v. Jaya Ghosh ( (2007) 4 SCC 511 ; Satish Sitole v. Ganga, (2008) 7 SCC 734 : (2008) 3 SCC (Cri.) 225: AIR 2008 SC 3093 . However, these are the cases, where this Court came to rescue the parties on the ground for divorce not provided for by the legislature in the statute" The Supreme Court after carefully examining the facts and circumstances in that case, held that it was not a case where there has been any obstruction to the stream of justice or there had been injustice to the parties, which was required to be eradicated. It was also found that the petition did not raise any question of general public importance. Therefore, the Supreme Court refused to invoke its power under Article 142 of the Constitution of India in that case. 16. After having understood the law on the point as stated above, we shall consider the sustainability of the dictum in Lakshmi Prasad's case (supra). For completeness of discussion, we shall consider the basic facts in nut-shell. A petition for divorce was filed by the husband urging the ground of cruelty under Section 13(1)(ia) of the Act. After trial, the petition was allowed and the marriage was dissolved by a decree of divorce. The wife challenged the decree before this Court in appeal. During pendency of the appeal, at the request of the counsel appearing for both the parties, this Court referred the parties to mediation. The mediation succeeded, the parties settled their disputes and they executed a memorandum of agreement. When the case was taken up for consideration, the parties urged before this Court that they were agreeable to dissolve the marriage by a decree of divorce on mutual consent. With that view, they filed an interlocutory application in the above appeal seeking dissolution of marriage by mutual consent. The application was supported by affidavits filed by both the parties, in which they reiterated their decision to dissolve the marriage by mutual consent. This Court, taking note of the principles in Visalakshi v. Shivaraman Nair ( 1991 (1) KLT 910 ) and Sreelatha v. Deepthy Kumar ( 1998 (1) KLT 195 ) and the decisions of other High Courts as well, held that in appropriate cases the waiting period prescribed under Section 13B(2) of the Act can be waived. It is pertinent to note that the binding precedents, viz., Anil Kumar Jain's case and Manish Goel's case (mentioned supra) were not brought to the notice of the Division Bench while dealing with Lakshmi Prasad's case. It is pertinent to note that the binding precedents, viz., Anil Kumar Jain's case and Manish Goel's case (mentioned supra) were not brought to the notice of the Division Bench while dealing with Lakshmi Prasad's case. It could be seen in the above backdrop that Lakshmi Prasad's case was decided wrongly as it went against the statutory provision and the binding precedents. We would have been bound to refer the ratio in Lakshmi Prasad's case for consideration of a Full Bench if we had a different legal approach to the issue. But here the legal position is settled by the pronouncements of the Apex Court. So, we find that the principle of law stated in Lakshmi Prasad's case is legally unacceptable as it runs contrary to the binding precedents and hence it requires no reference. With respect, we hold that the ratio in Lakshmi Prasad's case (supra) is not good law. Based on the dictum in Lakshmi Prasad's case, the petitioner is not entitled to claim any relief. Further, the law stated by the Supreme Court in Priyanka Khanna's case (supra) will not be helpful to the petitioner to contend that the Family Court can cut short the waiting period provided under Section 13B(2) of the Act. In the result, we find that the petition is devoid of any legal basis and, therefore, it is liable to be dismissed. Hence, we do so.