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Himachal Pradesh High Court · body

2017 DIGILAW 1349 (HP)

Nursey John v. Prem John

2017-12-06

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J. - By way of instant petition filed under section 482 of the Code of Criminal Procedure, 1973 challenge has been laid to judgment dated 12.08.2014, passed by learned Sessions Judge, Shimla in Criminal Revision RBT No.22-S/10 of 2013/11, affirming the order dated 9.12.2010, passed by learned Chief Judicial Magistrate, Shimla, in case No.70/4 of 2008, whereby petitioner was awarded maintenance allowance of Rs. 8000/- per month w.e.f.22.7.2008 i.e. date of institution of the petition filed under section 127 of Cr.P.C., 1973 2. Facts, in brief as emerge from the record are that the marriage of the petitioner was solemnized with the respondent at Chamba on 18.05.1983 as per Christian rights and out of their wedlock, two daughters were born. But since the respondent failed to maintain the petitioner and her daughters, she preferred petition under section 125 of the Code of Criminal Procedure, 1973 seeking therein maintenance from the respondent. The learned trial court granted maintenance of Rs. 400/- per month. 3. Being aggrieved and dissatisfied with the aforesaid order of learned trial court, petitioner preferred an application under section 127 of the Code of Criminal Procedure, 1973 for enhancement of the maintenance awarded by the learned trial Court. Learned trial Court vide order dated 9.12.2010, enhanced the maintenance amount from Rs. 400/-to Rs. 8000/- taking note of the fact that respondent had not been taking care of two daughters and the salary of respondent was increased after implementation of the 6th Pay Commission. 4. Both the parties i.e. petitioner as well as respondent, being aggrieved and dissatisfied with the aforesaid enhancement made by learned trial Court, filed separate revision petition''s in the Court of learned Sessions Judge,Shimla, laying challenge therein to the impugned order dated 9.12.2010, passed by learned Chief Judicial Magistrate, Shimla, however fact remains that learned Sessions Judge, Shimla, vide impugned order dated 12.8.2014 dismissed the aforesaid petitions having been filed by the petitioner as well as respondent. Since the petitioner was not satisfied with the aforesaid order dated, 12.8.2014, passed by the learned Sessions Judge, Shimla, she preferred the instant petition before this Court, seeking therein enhancement of compensation after setting aside the order dated 12.8.2014, passed by the learned Sessions Judge, Shimla. 5. Since the petitioner was not satisfied with the aforesaid order dated, 12.8.2014, passed by the learned Sessions Judge, Shimla, she preferred the instant petition before this Court, seeking therein enhancement of compensation after setting aside the order dated 12.8.2014, passed by the learned Sessions Judge, Shimla. 5. On 21.11.2017, learned counsel representing the parties, fairly stated before this Court that there is possibility of amicable settlement inter se the parties and as such, they may be afforded one opportunity to arrive at compromise inter se them. Accordingly, this Court adjourned the matter for 5.12.2017 with the direction to both the parties to remain present in Court so that possibility of amicable settlement inter se them is explored. 6. On 5.12.2017, both the parties came present in the Court in terms of order dated 21.11.2017, passed by this Court and stated that they are willing to have decree of divorce by mutual consent dissolving marriage inter se them. 7. Today, during the proceedings of the case, a joint application has been moved under section 482 of Cr.P.C,, 1973 read with Section 10(a) of the Indian Divorce Act, by the parties to the lis, praying therein for grant of decree of divorce by mutual consent. Application is taken on record. Registry is directed to register the same. 8. Perusal of the averments contained in the application suggests that parties to the lis have amicably settled the matter and have resolved to get their marriage dissolved by way of mutual consent. Since, marriage of the parties was solemnized as per Christian rights, prayer for dissolution of marriage by way of mutual consent can be considered under section 10(a) of the Divorce Act, 1869, which provides that petition for dissolution of marriage by way of mutual consent can be presented by both the parties on the ground that they have been living separately for a period of two years or more and they have not been able to live together and as such, agreed that their marriage should be dissolved. 9. It would be profitable to reproduce section 10(a) of the Divorce Act, herein:- "10A. Dissolution of marriage by mutual consent. 9. It would be profitable to reproduce section 10(a) of the Divorce Act, herein:- "10A. Dissolution of marriage by mutual consent. - (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage 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 Indian Divorce( Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and 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 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 by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and 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 declaring the marriage to be dissolved with effect from the date of decree." 10. In the case at hand, it is undisputed before me that parties to the lis have been living separately for considerable period i.e. for more than 10 years and during this period respondent i.e. husband of petitioner also filed a divorce petition on 3.1.2002 in the competent Court of law against the petitioner, but fact remains that aforesaid divorce petition having been filed by the respondent was dismissed on 22.5.2008, whereafter respondent preferred appeal i.e. FAO No.289 of 2008 in this Court, which was also dismissed on 24.8.2011. Though, by way of instant petition filed under Section 482 Cr.P.C., 1973 a prayer has been made on behalf of the petitioner for enhancement of maintenance allowance, awarded by the court below after setting aside the judgment passed by learned Sessions Judge, Shimla, H.P., in Criminal Revision RBT No.22-S/10 of 2013/11, but, as has been noticed above, during the proceedings of the case, parties to the lis through their respective counsel expressed their willingness to get their marriage dissolved by way of mutual consent. Subsequently, by way of joint application filed under Section 10(a) of Indian Divorce Act, 1869, read with section 482 of Cr.P.C., 1973 both the parties, while seeking dissolution of their marriage by way of mutual consent, also placed on record certain terms and conditions to be ad-heard by them. Sole question which arise for determination of this Court is that whether prayer for dissolution of marriage by way of mutual consent can be considered by this Court, at this stage, especially when divorce petition having been filed by the respondent i.e. husband of the petitioner stands dismissed. 11. Perusal of Section 10(a) of Indian Divorce Act, 1869, clearly suggests that petition for dissolution of marriage by way of mutual consent can be submitted by the parties jointly on the ground that they have been not living together for a period of two years or they have not been able to live together. Though, bare reading of aforesaid provisions of law, suggests that application, if any, under Section 10(a) of the Indian Divorce Act, is required to be presented to District Judge by both the parties to dissolve their marriage together, but careful perusal of the material available on record, clearly suggests that parties have not been living together as husband and wife for more than 10 years and during this period they have filed cases against each other including present one. There appears to be no possibility of rapprochement and reconciliation inter-se the parties and as such, no fruitful purpose would be served in case prayer having been made by both the parties for dissolution of marriage by way of mutual consent is not considered, at this stage, by this Court. Otherwise, also as is evident from the discussion made hereinabove, both the parties have resolved to dissolve their marriage by way of mutual consent and as such, no purpose would be served in case they are relegated to District Judge in terms of Section 10(a) of the Indian Divorce Act for getting their marriage dissolved by way of mutual consent. As per aforesaid provisions of law, District Judge while considering prayer, if any, made for dissolution of marriage by way of mutual consent is required to ascertain whether the parties are living separately for a period of two years or more and whether they have not been able to live together. As per aforesaid provisions of law, District Judge while considering prayer, if any, made for dissolution of marriage by way of mutual consent is required to ascertain whether the parties are living separately for a period of two years or more and whether they have not been able to live together. Further perusal of aforesaid provisions of law, suggests that learned District Judge after having accepted the application filed on behalf of both the parties for dissolution of marriage, cannot grant/accept the prayer for dissolution of marriage till the expiry of six months from the date of presentation of petition under Section 10(a) of the Act. In the case at hand, it is not in dispute that the parties are not living together and they have mutually agreed to get their marriage dissolved by way of mutual consent and as such, as far as expiry of statutory period of six months as envisaged under Section 10(a) of the Indian Divorce Act, for granting decree by mutual consent is concerned, this Court is of the view that statutory period, as referred above, can be waived, especially when there is no possibility of rapprochement of the parties and marriage has broken beyond repair. In this regard, it would be apt to take note of the judgment rendered by the Hon''ble Apex Court in Veena vs. State (Government of NCT of Delhi) and another, (2011)14 SCC 614 , wherein the Hon''ble Apex Court has held as under: 12. "We have heard the learned counsel for the parties and talked to the parties. The appellant has filed a divorce petition under section 13(1)(a) of the Hindu Marriage Act, 1955, being HMA No.397/2008 which is pending before the Court of Sanjeev Mattu, Additional District Judge, Karkardooma Courts, Delhi. In the peculiar facts and circumstances of this case, we deem it appropriate to transfer the said divorce petition to this Court and take the same on Board. The said petition is converted into one under section 13B of the Hindu Marriage Act and we grant divorce to the parties by mutual consent." 12. In the peculiar facts and circumstances of this case, we deem it appropriate to transfer the said divorce petition to this Court and take the same on Board. The said petition is converted into one under section 13B of the Hindu Marriage Act and we grant divorce to the parties by mutual consent." 12. However, in the present case, the parties are before this Court in a petition filed under section 482 of Cr.P.C., 1973 seeking enhancement of maintenance awarded under Section 125 Cr.P.C,, 1973 and as such, joint prayer having been made on behalf of both the parties under Section 10(a) of the Indian Divorce Act for dissolution of their marriage by way of mutual consent is required to be considered accordingly. Otherwise also, it is quite evident from the record that the parties are not living together for the last ten years. Moreover, this Court after having interacted with the parties, sees no possibility of reconciliation inter se parties, as such, no fruitful purpose would be served in case the matter is kept pending for another six months before passing decree of divorce by mutual consent. 13. Hon''ble Apex Court in Priyanka Khanna vs. Amit Khanna, (2011) 15 SCC 612 , has further held as under:- "7. We also see form the trend of the litigations pending between the parties that the relationship between the couple has broken down in a very nasty manner and there is 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 13-B of the Hindu Marriage Act. 8. We also see from the record that the first litigation had been filed by the respondent husband on 2.6.2006 and a petition for divorce had also been filed by him in the year, 2007. We therefore, feel that it would be in the interest of justice that the period of six months should be waived in view of the above facts." 14. In the instant case also, statutory period of six months deserves to be waived keeping in view the fact that the marriage between the parties has broken beyond repair and there seems to be no possibility of parties living together. In the instant case also, statutory period of six months deserves to be waived keeping in view the fact that the marriage between the parties has broken beyond repair and there seems to be no possibility of parties living together. The Hon''ble Apex Court in Civil Appeal No.11158 of 2017 [arising out of Special Leave Petition (Civil) No.20184 of 2017] titled as Amardeep Singh vs. Harveen Kaur, decided on 12.09.2017, has held as under:- "13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini, AIR 1986 Andhra Pradesh 167 (DB), Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy, AIR 1994 Karnataka 12 (DB), Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra, AIR 1990 Del 146 and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta, AIR 2005 MP 106 (DB). Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan Moorkkanatt, AIR 2010 Kerala 157. It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions: i) How long parties have been married? ii) How long litigation is pending? iii) How long they have been staying apart? iv) Are there any other proceedings between the parties? v) Have the parties attended mediation/conciliation? vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties? 14. ii) How long litigation is pending? iii) How long they have been staying apart? iv) Are there any other proceedings between the parties? v) Have the parties attended mediation/conciliation? vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties? 14. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony. 15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation. 16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh''s "Principles of Statutory Interpretation" (9th Edn., 2004), has been cited with approval in Kailash vs. Nanhku and ors., (2005) 4 SCC 480 as follows: "The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ''No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.'' " ''For ascertaining the real intention of the legislature'', points out Subbarao, J. ''the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the noncompliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered''. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory." 18. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory." 18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following : i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself; ii) all efforts for mediation/conciliation including efforts in terms of Order 32A Rule 3 CPC/Section 23(2) of the Act/section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony. 19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court. 21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation." 15. 21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation." 15. Though, this Court is cautious of the fact that petition under Section 10(a) of the Indian Divorce Act is required to be filed before the learned District Judge, who taking note of parameters laid down under the provisions of law is competent to grant decree of dissolution of marriage by way of mutual consent, but, in the peculiar facts and circumstances of the case, wherein parties have prayed for dissolution of their marriage by way of mutual consent in the proceedings filed under Section 482 Cr.P.C., 1973 this Court is of the view that unnecessary delay would be caused in case the parties are relegated to learned District Judge, for having decree by way of mutual consent under Section 10(a) of the Indian Divorce Act. In the case at hand, both the parties categorically stated on oath before this Court that they of their own volition and without there being any external pressure have entered into the compromise and have decided to dissolve their marriage by way of mutual consent. They have also stated before the Court that in case decree of divorce by way of mutual consent is passed they shall withdraw all the cases against each other pending in courts including this Court. They also stated before this Court that they shall abide by all the terms and conditions of the settlement arrived inter se them. Their statements are taken on record. 16. Having regard to aforesaid position of law vis-a-vis prayer having been made by the learned counsel for the parties, this Court sees no impediment in accepting the aforesaid prayer having been made by both the parties to the lis and as such, solely with a view to avoid further delay in the matter, deems it fit to consider the prayer made under Section 10(a) of the Indian Divorce Act read with under Section 482 Cr.P.C,, 1973 for dissolution of marriage. 17. 17. Consequently, in view of the detailed discussion made hereinabove, Cr.MP No.1417 of 2017 filed under Section 10(a) of the Indian Divorce Act read with section 482 of the Code of Criminal Procedure, 1973 is allowed and in view of the peculiar facts and circumstances, as enumerated hereinabove, as well as law laid down by Hon''ble Apex Court, the marriage between the parties is ordered to be dissolved by mutual consent. Registry is directed to draw a decree of dissolution of marriage by mutual consent accordingly. Terms and conditions contained in the application, referred hereinabove, shall also form part of the decree. 18. Needless to say, both the parties shall abide by all the terms and conditions contained in the application and all the cases pending before the Court(s) below shall be withdrawn by the parties, immediately, in terms of the compromise/settlement. Apart from above, respondent shall keep on making payment qua maintenance amounting to Rs. 15,000/- w.e.f. December, 2017 by remitting the same in the bank account of the petitioner i.e. State Bank of India, Sanjauli Branch, Saving Account No.31749162766, failing which he shall render himself liable for penal consequences as well as contempt of this Court. 19. It is made clear that judgment rendered by this Court in FAO No.289 of 2008 filed by the respondent against the judgment and decree passed by learned District Judge, whereby his divorce petition came to be dismissed, shall have no bearing on the judgment passed by this Court and both the parties shall be bound by the judgment passed in the instant case. 20. The instant appeal is disposed of in the aforesaid terms. Pending applications, if any, are also disposed of.