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2019 DIGILAW 2511 (RAJ)

Nitish Agarwal v. Anchal Singhal

2019-09-17

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

body2019
JUDGMENT : Mohammad Rafiq, J. 1. This appeal has been preferred by the appellant-husband Nitish Agarwal against order dated 18.05.2019 passed by the Family Court No. 2, Jaipur (for short 'the Family Court'), which has thereby rejected two separate applications; one under Section 13B of the Hindu Marriage Act, 1955 (for short 'the Act') and another under Section 14 of the Act, jointly filed by appellant-husband and the respondent-wife. 2. Learned counsel for the parties submitted that marriage of the parties was solemnized on 11.12.2018 at Jaipur. No child is born out of their wedlock. Differences arose between the appellant-husband and the respondent-wife soon after the marriage, due to which it was not possible for them to live together. Resultantly, they started living separately. Thereafter, an application under Section 13B of the Act and another application under Section 14 of the Act were jointly filed by them before the Family Court, which vide impugned order dated 18.05.2019 has dismissed both the applications. 3. When the matter was listed before this Court on 16.08.2019, the parties filed joint affidavit which was taken on record. On 19.08.2019, both the parties were present in the Court and expressed that their marriage has come to a stage of irretrievable break down and they want to get decree of divorce by mutual consent. The parties signed order sheet on that day and they were identified by their counsel. The joint affidavit filed by the parties on 16.08.2019 reads as under: "1. That marriage between the parties above was solemnized on dated 11.12.2018. 2. That we both remain together for a month i.e. upto 10th January, 2019. 3. That during the period of one month, we resided together could not digest the behavior of each other. 4. That whenever we talked other party took otherwise. During this one month period when we resided together there would be few times when we talked in normal way. 5. That after the marriage the differences arises between the parties to the extent that there living together and performing of conjugal rights become difficult. They are passing their life solitary. They with their Family members tried to restitute the matrimonial relation between the parties but the differences have become so deepened that there living with together as Husband and Wife is not possible. So, the parties decided to get a decree of dissolution of marriage by mutual consent. 6. They are passing their life solitary. They with their Family members tried to restitute the matrimonial relation between the parties but the differences have become so deepened that there living with together as Husband and Wife is not possible. So, the parties decided to get a decree of dissolution of marriage by mutual consent. 6. That the contents are very clear. Further there are so many things which is not possible to write each and every word in the application, which affects the character and conduct of the parties, which may affect the future career of the parties. It is a case one of exceptional hardship to the petitioner or of exceptional Depravity on the party of the respondent. 7. That it has become impossible to live with each other. Impossible living includes complete mutual distrust, doubt shattered etc., that may cause unpleasant incident and may be violent to the extent which may cause substantial injury to each other or may cause harm to himself or herself. 8. That it is pertinent to mention here that a mutual compromise/settlement has taken place between the parties including all the expenses for streedhan and maintenance etc. settlement has taken place for an amount of Rs. 31,00,000/- whereas 50% of this amount i.e. 15,50,000/- has been given by way of D.D. at the time of filing of the application under Section 13(B) of the Hindu Marriage Act. Remained 50% i.e. Rs. 15,50,000/- is to be given at the time of passing of decree." 4. Subsequently, the parties also filed a joint application under Section 14 of the Act before this Court on 27.08.2019, which reads as under: "1. That the humble parties to the Civil Misc. Appeal filed an application before the Family Court No. 02, Jaipur under Section 13(B) of the Hindu Marriage Act-1955 for dissolution of marriage by granting a decree of divorce. Since this application was filed before passing of the one year of the marriage, hence an application under Section 14 of the Hindu Marriage Act-1955 was also filed. In the application filed before the Family Court No. 02, Jaipur, the reason for exceptional hardships to the petitioner or of exceptional Depravity on the part of the respondent on the ground that since marriage exceptional differences have arisen between the parties so there is no possibility to live with each other. 2. In the application filed before the Family Court No. 02, Jaipur, the reason for exceptional hardships to the petitioner or of exceptional Depravity on the part of the respondent on the ground that since marriage exceptional differences have arisen between the parties so there is no possibility to live with each other. 2. That the learned Family Court No. 02, Jaipur dismissed the application on the ground that it does not come under the provision of the section 14 of the Hindu Marriage Act-1955. 3. That against the order of the learned Family Court No. 02, Jaipur a Civil Misc. Appeal is filed before the Hon'ble Court. 4. That it is respectfully submitted that the term exceptional hardship to the petitioner or of exceptional deprivation to the respondent have not been defined under the Hindu Marriage Act-1955. 5. That the term exceptional hardship to the petitioner or of exceptional deprivation to the respondent are the relative term. It depends upon the person as to how his behavior is. One thing may be liked by one person the same thing may not be liked by the other. 6. That generally exceptional hardship is mean more than ordinary, circumstances that rarely occurred or unreasonable anticipation and expectation. The Dictionary meaning of the term is unusual, special, out of the ordinary course. 7. That since marriage the behavior of both the parties to each other were not liked by each other, if the male spouse say something which is controverted by the female spouse and anything said by the female spouse that was controverted by the male spouse, this short of conversation created unpleasant behavior amongst them. 8. That both the parties to this CMA were suspicious about the character and conduct of the each other. 9. That during the said short period of one month from the date of marriage the female spouse shown her anxiety to go foreign for study a course. The male spouse told the female spouse to consider the same later on. That also gave her displeasure. 10. That there was disrespect to the parents of each other. 11. That during the course of talking/conversation with regard to the family matter or general talks the either spouse become so aggressive which created the displeasure amongst them and disbelieve to each other. 12. That also gave her displeasure. 10. That there was disrespect to the parents of each other. 11. That during the course of talking/conversation with regard to the family matter or general talks the either spouse become so aggressive which created the displeasure amongst them and disbelieve to each other. 12. That these circumstance as stated above is exceptional hardship to the petitioner or of exceptional deprivation to the respondent. 13. That during that short period there was not the cohabitation between the parties which has also created irritation in the minds of each other and ultimately it was found that this kind of behavior, talking etc. may not take the aggravated form which may cause a substantial loss to the either party. 14. That ultimately it was decided that there is exceptional hardship to the petitioner or of exception depravation to the respondent. 15. That both the parties are well educated and they understand the pros and cons of the action and for the application which they are moving before the Hon'ble Court." 5. Mr. P.L. Hissaria, learned counsel for the respondent submitted that pursuant to the terms of the settlement arrived at between the parties, the appellant-husband agreed to pay to the respondent-wife a sum of Rs. 31,00,000/- as permanent alimony. Initially, when the application was filed before the Family Court, the appellant-husband paid half of the aforesaid amount i.e. Rs. 15,50,000/- to the respondent-wife. Subsequent to filing of the present appeal before this Court, the appellant-husband has paid remaining half of the aforesaid amount i.e. Rs. 15,50,000/- to the respondent-wife. Learned counsel therefore submitted that this Court should grant leave under Section 14 of the Act waiving the waiting period of one year from the date of marriage of the parties as envisaged in Section 13B(1) of the Act. 6. We have given our anxious consideration to rival submissions and carefully perused the material on record. We have also studied the decided case laws on interpretation of Section 14 of the Act. 7. When we look into the Statement of Objects and Reasons of the 1996 Amendment to the proviso to Section 14 of the Act, it would be evident that the legislative intention behind introducing Section 14 including its proviso in the Hindu Marriage Act was to ensure expeditious disposal of petitions filed for divorce by mutual consent. 7. When we look into the Statement of Objects and Reasons of the 1996 Amendment to the proviso to Section 14 of the Act, it would be evident that the legislative intention behind introducing Section 14 including its proviso in the Hindu Marriage Act was to ensure expeditious disposal of petitions filed for divorce by mutual consent. An essential reason for exemption from filing a divorce petition by mutual consent prior to expiry of one year after the marriage enshrined in Section 13B(1) of the Act is that the case should be one of "exceptional hardship to the petitioner" or of "exceptional depravity on the part of the respondent". But at the same time, a discretion has been given to the Court that if it appears to the court at the time of hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. 8. Dealing with this aspect, the Delhi High Court in Pooja Gupta Vs. Nil, 2005 (118) DLT 492 held that as long as the Court is satisfied, as an essential reason for exemption for filing a divorce petition by mutual consent prior to expiry of one year after the marriage is that the plea for mutual consent is not under coercion/intimidation or undue influence and there are no chances of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent, the continuance of such a marriage is bound to cause undue hardship to the spouses. When a petition under Section 13B of the Act accompanied with a petition under Section 14 of the Act seeking leave of the Court to present the petition under Section 13B of the Act prior to expiry of one year after the marriage for obtaining decree of divorce by mutual consent is presented, the Court has to therefore satisfy itself about, (i) the maturity and the comprehension of the spouses; (ii) absence of coercion/intimidation/undue influence; (iii) the duration of the marriage sought to be dissolved; (iv) absence of any possibility of reconciliation; (v) lack of frivolity; (vi) lack of misrepresentation or concealment; and (vii) the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties. The Court should record a finding that the circumstances make out a case of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. 9. The Delhi High Court in Pooja Gupta (supra) on these very considerations was persuaded to grant leave under the proviso to Section 14(1) of the Act and on that basis passed a decree of divorce by mutual consent recording the following observations: "9. I have ascertained the resolve to dissolve the marriage from both the parties as well as from their parents, present in Court even today, who agree and reiterate that it would be appropriate and indeed desirable and essential if the divorce by mutual consent be granted. On my personal examination of two parties, I am satisfied that the decision is not influenced by any external factor including the parents. Both the parties are (sic.) professionals and are aged about 30 years and 32 years respectively. They both appear to be mature, independent and fully committed even after a passage of about six months from the filing of the petition to part company. Thus even after a passage of about 20 months from the date of the marriage, the parties are firm in their resolve to dissolve the marriage. 10. In this view of the matter the appeal is allowed and the Order dated 9th September, 2003 is set aside. The claim for exemption from waiting for one year on the facts of the present case was therefore justified. Accordingly, the permission to file the petition under Section 13(B) of the HMA on 16th July, 2003 was justified. 10. In this view of the matter the appeal is allowed and the Order dated 9th September, 2003 is set aside. The claim for exemption from waiting for one year on the facts of the present case was therefore justified. Accordingly, the permission to file the petition under Section 13(B) of the HMA on 16th July, 2003 was justified. In view of the exceptional hardships explained by the parties in the present appeal, the petition under Section 13(B)(1) of the Act which was filed on 16th July, 2003 is allowed and the marriage solemnized between the parties, i.e., Puja Gupta and Nikhil Badhwar on 5th February, 2003 is dissolved by a decree under Section 13(B)(1) of the Act with effect from 16th January, 2004." 10. The Delhi High Court in Tarun Kumar Vaish Vs. Ms. Meenakshi Vaish, 2005 (119) DLT 567 while relying on its earlier judgment in Pooja Gupta (supra) allowed the petition with the following observations: "8. I have ascertained the resolve to dissolve the marriage from both the parties as well as from the elder sister of the respondent, present in Court today, who agree and reiterate that it would be appropriate and indeed desirable and essential if the divorce by mutual consent is granted. On my personal examination of the parties, I am satisfied that the decision is not influenced by any external factor. Both the parties are aged 33 and 26 years respectively. They both appear to be matured, independent and fully committed even after a passage of about 8 months from the date of filing of the petition to part company. Thus, even after a passage of about 11 months from the date of the marriage, the parties are firm in their resolve to dissolve the marriage. Thus, it is not a hasty decision to seek a divorce but the decision is a mature and a well considered one and has not been arrived at under any external influence. 9. In this view of the matter, the petition is allowed and the Order dated 27th July, 2004 is set aside. The claim for exemption from waiting from one year on the facts of the present case, therefore, is justified. Accordingly, the permission to file the petition under Section 13(B) of the HMA on 13th July, 2004 was justified in view of the exceptional hardship explained by the parties, in the present petition. The claim for exemption from waiting from one year on the facts of the present case, therefore, is justified. Accordingly, the permission to file the petition under Section 13(B) of the HMA on 13th July, 2004 was justified in view of the exceptional hardship explained by the parties, in the present petition. The petition under Section 13(B)(1) of the Act which was filed on 13th July, 2004, is accordingly allowed and the marriage solemnized between the parties that is, Tarun Kumar Vaish and Meenakshi Vaish on 30th April, 2004, is dissolved by a decree under Section 13(B)(1) of the Act with effect from 18th April, 2005." 11. Division Bench of the Punjab and Haryana High Court in Mandeep Kaur Bajwa Vs. Chetanjeet Singh Randhwa, 2015 AIR (Punjab) 160 on analysis of the provisions of Sections 13B and Section 14(1) of the Act in para 8, 10 and 11 held as under: "8. On a combined reading of Sections13-B and 14 of the Act, it is clear that for filing a petition under Section 13B of the Act, a period of one year should elapse from the date of marriage. The proviso to Section 14 (1) is an exception to the necessity for expiration of a period of one year since the date of marriage to enable a party to file a petition for divorce. If an application for leave under the proviso to Section 14(1)of the Act is presented by the parties, what the Court is expected to look into is whether there is exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. If the Court is satisfied about the existence of the ingredients of the proviso to Section 14(1) of the Act, leave would be granted to present the petition for divorce even before the expiry of one year since the date of marriage. Even if leave is granted, but, if it appears to the Court at the hearing that the leave was obtained by misrepresentation or concealment of the nature of the case, the Court has power to impose a condition that the decree shall not have effect until after the expiration of one year from the date of marriage or the Court may even dismiss the petition for divorce without prejudice to any petition which may be brought after the expiration of one year. Once it is made out that there are exceptional circumstance warranting grant of leave to avoid hardship or depravity of the nature mentioned in the proviso to Section 14(1) of the Act, the Court will grant leave to present the petition notwithstanding that one year has not elapsed since the date of decree. 10. In the present case, immediately after the marriage, the parties could not adjust due to different temperaments which led to strained relations between them. They lived together as husband and wife for about three months only. Thereafter, the appellant went to Canada. It is not possible for her to visit India time and again. Both the parties are of marriageable age. The matter has been mutually settled between them. In view of proviso to section 14(1) of the Act, condonation of the period of one year in the facts and circumstances of the present case appears to be appropriate. Accordingly, the impugned judgment passed by the trial court is set aside. The appeal stands allowed. 11. The petition under Section 13-B of the Act was filed on 12.8.2013 when the statements of both the parties at first motion were recorded. The statements of both the parties at second motion in terms of Section 13B(2) of the Act were recorded on 17.2.2014. Therefore, in view of the above, the parties are granted a decree of divorce by mutual consent under Section 13B of the Act." 12. The Karnataka High Court in Ujwal Shetty and Another Vs. Nil, reported as II (2002) DMC 556(DB) stating the position of law with regard to joint interpretation of Section 13B and Section 14 of the Act in para 3 and 4 held as under: "3. After the parties appeared before the Trial Court at the stage of passing Orders, the learned Judge has re-examined the position and he has dismissed the petition on the solitary ground that it was presented prior to the period of one year having elapsed. After the parties appeared before the Trial Court at the stage of passing Orders, the learned Judge has re-examined the position and he has dismissed the petition on the solitary ground that it was presented prior to the period of one year having elapsed. We are surprised at the approach that was adopted because, as pointed out by us earlier, the Family Court had considered the application under Section 14 and had passed the necessary order according it sanction to present the petitioner prematurely and it was not open to the learned Judge who was presiding over the very Court at the time when the petition was to be disposed of, to virtually question or sit in appeal or review the earlier Order that had been passed by his predecessor who was presiding over the same Court. 4. Though the parties are not present before us, the record indicates that the requisite procedure have been complied with before the Trial Court and but for the aforesaid reason the Trial Court would have granted a decree of dissolution of marriage under Section 13-B. Since some time has passed we have re-ascertained from the parents of the respective parties who inform us that the couple is still desirous of the dissolution of the marriage and secondly that there are not claim of any type subsisting on either side." 13. The Punjab and Haryana High Court in Sakshi Vs. Abhinandan Sharma, 2015 (3) LJR 349 while interpreting proviso to Section 14(1) of the Act held that it crystallizes that if the Court is satisfied about the existence of the ingredients of the proviso to Section 14(1) of the Act of 1955 that the parties are able to make out a case of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, the court can grant permission to present the petition for divorce even before the expiry of one year since the date of marriage. In that case the court below held that the petitioner could not make out a case of exceptional hardship or exceptional depravity and declined to condone the period and dismissed the application. Upholding that decision, Punjab and Haryana High Court in para 10 of the Report held as under: "10. In our opinion, there appears to be absolutely no illegality or perversity in the aforesaid findings recorded by the learned trial Court. Upholding that decision, Punjab and Haryana High Court in para 10 of the Report held as under: "10. In our opinion, there appears to be absolutely no illegality or perversity in the aforesaid findings recorded by the learned trial Court. There are no two thoughts over the proposition of law that only if the parties are able to make out that it was a case of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent that permission to file a divorce petition before the expiry of statutory period of one year from the date of marriage can be granted. The facts and circumstances of the case in hand which led to initiation of a petition under Section 13-B of the Act of 1955 for a decree of divorce by mutual consent, were just normal. They failed to show and explain anything which would result in exceptional hardship to them if they were asked to wait for the statutory period of one year. The very spirit and object of the provisions of Section 14(1) of the Act of 1955 will be lost, if in such normal situation also the parties are allowed to part ways by obtaining a decree of divorce by mutual consent even before expiry of one year period from the date of marriage. The object underlying the provision is to give the couple time to breathe and reconcile, if possible, the dispute/misunderstanding that had cropped up between them. Thus, the requirements enunciated in the provision have to be strictly observed and complied with unless the parties are able to make out a case of exceptional hardship." 14. The Delhi High Court in Sankalp Singh Vs. Prarthana Chandra, FAO No. 312 of 2012 decided on 01.03.2013 on inter play of Section 13B and Section 14 of the Act held as under: "12. The cleavage of judicial opinions arises from the interpretation of the interplay of the said Sections of the Act. Pertinently, Section 13B of the said Act was inserted subsequently by Act 68 of 1976 when certain amendments were also simultaneously carried out to Section 14 of the said Act. Thus, one judicial view is that Section 13B is a Code by itself which is different from the grounds of divorce provided under Section 13(1) of the said Act. Pertinently, Section 13B of the said Act was inserted subsequently by Act 68 of 1976 when certain amendments were also simultaneously carried out to Section 14 of the said Act. Thus, one judicial view is that Section 13B is a Code by itself which is different from the grounds of divorce provided under Section 13(1) of the said Act. The philosophy of Section 13 of the said Act is that one of the spouses has to allege and prove the grounds of divorce against the other spouse and should not be taking advantage of his/her own wrong. This is, thus, based on a fault theory. Section 14 restricts presentation of such a petition for divorce within the period of one (1) year from the date of marriage. However, the proviso to sub-section (1) of Section 14 of the said Act allows presentation of a petition even before the end of one (1) year from the date of marriage on the ground that "a case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent". Such exceptional hardship and depravity would, thus, have to be established by the petitioner in order to avail of the proviso to sub-section (1) of Section 14 of the said Act. 16. The second set of opinion is and would be based on different legal understandings. At the stage when by Act 68 of 1976 Section 13B was introduced in the said Act, the provisions even of Section 14 of the said Act were amended. The legislature cannot be said to be ignorant of the provisions of Section 14 of the said Act when it introduced Section 13B of the said Act. The provisions of Section 14 of the said Act begins with a "notwithstanding" clause, i.e., "Notwithstanding anything contained in this Act". Thus, irrespective of any other provision of the said Act, no petition for dissolution of marriage is to be presented within the period of one (1) year of the marriage (the period being modified by the amending Act 68 of 1976). Thus, the proviso to sub-section (1) of Section 14 of the said Act which permits presentation of a petition within the period of one (1) year of the marriage would equally apply to a petition to be presented under Section 13B of the said Act. 17. Thus, the proviso to sub-section (1) of Section 14 of the said Act which permits presentation of a petition within the period of one (1) year of the marriage would equally apply to a petition to be presented under Section 13B of the said Act. 17. This aspect is sought to be reinforced by the wording of Section 13B of the said Act. Sub-section (1) of Section 13B of the said Act begins with "Subject to the provisions of this Act". This would imply that the provisions of sub-section (1) of Section 13B of the said Act are subject to the provisions of the proviso to sub-section (1) of Section 14 of the said Act. The aspect of the requirement of alleging and establishing exceptional hardship and depravity is sought to be explained by suggesting a procedure that the parties may not like to allege against each other the aspects of such exceptional hardships but it can always be open to the parties, if they so agree, to jointly submit the same in a sealed cover as enclosure to an application under the proviso to sub-section (1) of Section 14 of the said Act in case of a petition under Section 13B of the said Act. 19. The view, which we have referred to aforesaid, is also said to be supported by sub-section (1) of Section 13B of the said Act. It is not in dispute that neither the trial court nor the High Court can waive the period or wait of six (6) months between the presentation of the first motion and the second motion. It is, thus, submitted that all that is sought to be done by moving an application under the proviso to sub-section (1) of Section 14 of the said Act is to reduce the period of presentation of the first motion under Section 13B of the said Act to a period less than a year whereafter in any case there would a further wait of six (6) months before the second motion is filed. It was, thus, suggested that this can be worked out by permitting such a petition to be presented provided it satisfies the requirement of exceptional hardship under sub-section (1) of Section 14 of the said Act and thereafter the parties would still wait for six (6) months period to present the second motion. 28. It was, thus, suggested that this can be worked out by permitting such a petition to be presented provided it satisfies the requirement of exceptional hardship under sub-section (1) of Section 14 of the said Act and thereafter the parties would still wait for six (6) months period to present the second motion. 28. It is not in dispute or doubt that before the proviso to sub-section (1) of Section 14 of the said Act can be invoked, a case of exceptional hardship or exceptional depravity has to be made out. Those are the essential ingredients of the proviso. A mutual consent divorce petition envisages no allegation against each other. In fact, the settlement arrived at inter se the parties in the mediation proceedings also emphasized this aspect. However, in our view this cannot exclude the parties to jointly set forth the exceptional hardship even if they do not want to make allegations against each other. Exceptional hardships can be set out either in the application filed under the proviso to sub-section (1) of Section 14 of the said Act or the same can be enclosed in a sealed cover by the parties for the benefit of the Court and the Court would have to satisfy itself whether the parameters of such exceptional hardship are satisfied for invoking the provisions of proviso of sub-section (1) of Section 14 of the said Act before such an application can be entertained. 31. The effect of the aforesaid would be in the given facts of the case that the order dated 12.6.2012 can be set aside and the application entertained for grant of first motion under Section 13B (1) of the said Act. However, the decree of divorce and the second motion presented would not be passed till the expiry of the period of one (1) year of living apart from 12.4.2012. The net period for grant of divorce would, thus, stand reduced. This would, of course, have to satisfy the ingredients of the proviso of Section 14 (1) of the said Act, i.e., exceptional hardship or exceptional depravity. This test would have to be examined on the basis of the material to be placed by the two parties (which has not been placed so far) in support of the application under the proviso to sub-section (1) of Section 14 of the said Act albeit it can be done in a sealed cover. This test would have to be examined on the basis of the material to be placed by the two parties (which has not been placed so far) in support of the application under the proviso to sub-section (1) of Section 14 of the said Act albeit it can be done in a sealed cover. We may also add that in the present case a settlement through pre-litigative mediation was arrived at. 32. We, thus, set aside the impugned order dated 12.6.2012 with a direction to the Family Court, Patiala House to re-examine the case for grant of the first motion on the application earlier presented but permitting the parties to place on record the material in support of their application under proviso to Section 14 (1) of the said Act within fifteen (15) days from today. If a case of exceptional hardship or exceptional depravity is made out then the first motion can be passed and the second motion can be presented within the window of six (6) to eighteen (18) months from the date when the first motion could have been accepted without waiving the minimum period of six (6) months and also ensure that the period of one (1) year of separation from 12.4.2012 has expired." 15. Aforementioned judgment in Sankalp Singh (supra) was delivered at a time when the courts adopted strict approach on adherence to cooling off period under Section 13B(2) and maintained that only the Supreme Court could waive that period by recourse to Article 142 of the Constitution of India. Subsequently, the Supreme Court in Veena Vs. State (Government of NCT of Delhi) & Another, (2011) 14 SCC 614 ; Devinder Singh Narula Vs. Meenakshi Nangia, (2012) 8 SCC 580 ; Amardeep Singh Vs. Harveen Kaur (2017) 8 SCC 746 ; Manish Goel Vs. Rohini Goel, (2010) 4 SCC 393 held that since the cooling off 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. 16. The Punjab and Haryana High Court in Ankush Aggarwal Vs. 16. The Punjab and Haryana High Court in Ankush Aggarwal Vs. Priya Garg, FAO-M-182-2018 recently decided on 16.08.2018 was considering challenge to the order passed by the court below dismissing the joint application filed by the parties under Section 14 read with Section 13B of the Act. The High Court set aside the aforesaid order in the following terms: "8. That the decision containing divorce by mutual 4 of 6 FAO-M-182-2018 consent is not caused by any coercion intimidation or undue influence from any side rather is voluntary acceptance of the ground reality by both the petitioners with intent to avoid growth of rancor bitterness and hostility between their respective families and to avoid any untoward happening or occurrence." We have considered the facts and circumstances of this case and gone through the averments in the application for leave to file the petition for divorce by mutual consent prior to the expiry of one year after the marriage. We find that both the parties are highly educated as one of the parties is MBA whereas the other party has done MSC and M. Phil. They claim to be sufficiently grown up, educated and award of their responsibilities and mature enough to comprehend all pros and cons of the decision to take divorce. They have averred that they stayed together at Bathinda for few days after marriage. As per their opinion the marriage failed and could not be consummated due to irreconcilable differences in temperaments of the parties giving rise to extreme bitterness and rancor between the parties and their relatives. Both of them reiterated the same feelings by appearing in the Court. We, on the basis of above said circumstances, find that it is a case of exceptional hardship to both of them as they appears not to be willing enough to resettle. It does not appear to be a case where a petition has been filed under my misrepresentation or by coercion. We have also made an attempt to find out if there is any reasonable probability of reconciliation but both appear adamant not to resume cohabitation. It does not appear to be a case where a petition has been filed under my misrepresentation or by coercion. We have also made an attempt to find out if there is any reasonable probability of reconciliation but both appear adamant not to resume cohabitation. No hard and fast rule can be laid down regarding the 5 of 6 FAO-M-182-2018 parameters to determine the exceptional hardship and the exceptional circumstances, which would constitute factors for permitting parties/party to file petition for divorce prior to the expiry of one year after the marriage and it has to be seen in the circumstances of each case. No straight jacket formula can be laid down for defining the extra ordinary exceptional circumstances to grant such leave. This appeal, in view of the above discussion, deserves to be allowed. Ordered accordingly. Order dated 21.05.2018 based on the subject to satisfaction of the learned District Judge, Bathinda, is hereby set-aside. The application under Section 14 of the Act filed by the parties along with joint petition under Section 13-B of the Act is hereby allowed and the petition under Section 13-B of the Act is restored. The parties will be permitted to proceed ahead with the petition under Section 13-B of the Act in accordance with law. They will appear before the District Judge, Bathinda for further proceedings on 01.09.2018. The said Court shall register the petition under Section 13-B of the Act at its original number and take up the same in accordance with law." 17. Division Bench of the Kerala High Court in Op(Hma).... Vs. Harikumar, Mat. Appeal No. 334 of 2014 decided on 21.05.2014 was considering an appeal jointly filed by both husband and wife against the judgment of the Family Court dismissing their joint application filed under Section 13B of the Act read with Section 14 of the Act. Before the High Court it was submitted that the parties did not file an application under proviso to Section 14(1) of the Act and that they are ready to file such application in terms of the said proviso. The High Court in those circumstances taking note of the fact that marital relationship between the parties have been broken irretrievably and especially when there is no issues out of the said wedlock, directed the court below to consider the matter on merits, for disposing the joint application for divorce on mutual consent. The High Court in those circumstances taking note of the fact that marital relationship between the parties have been broken irretrievably and especially when there is no issues out of the said wedlock, directed the court below to consider the matter on merits, for disposing the joint application for divorce on mutual consent. The High Court therefore set aside the order passed by the Family Court and remanded the matter back to the Family Court with direction to the appellants therein to file an application under the proviso to Section 14 of the Act and the Family Court was further directed to consider such application on merit and pass appropriate orders on in the application under Section 14 as well as in the main petition within one month from the date of production of the certified copy of the judgment. Following observations were made by the Court: "4. Having regard to the facts and circumstances involved in the case, we are of the opinion that we need not retain the case in the file of this court and the appellants can be relegated to approach the court below by filing an application under the proviso to Section 14 of the Hindu Marriage Act, 1955 in O.P. (HMA) No. 1039 of 2013, particularly when the marital relationship between the parties have been broken irretrievably and especially when there is no issues in the said wedlock and directing the court below to consider such petition on merit, for disposing the joint application for divorce on mutual consent. In the result, this appeal is disposed of setting aside the judgment dated 05-12-2013 in O.P(HMA) No. 1039/2013 and remanding the case back to the Family Court, Mavelikkara and directing the appellants to file an application under the proviso to Section 14 of the Hindu Marriage Act, 1955, which will be considered by the learned Judge of the Family Court below, on merit and pass appropriate orders in the said application under Section 14 as well as in the main petition, keeping in mind the fact that the parties are living separately with effect from 24.10.2012 and no issues are in their wedlock and such orders shall be passed within one month from the date of production of the certified copy of this judgment." 18. In Kanchan Upreti Vs. In Kanchan Upreti Vs. Smt. Komal Upreti, First Appeal No. 80 of 2016 decided on 23.02.2017, the Uttarakhand High Court speaking through Hon'ble The Chief Justice, Mr. K.M. Joseph, as his Lordship then was, in para 7 and 8 held as under: "7. After hearing the learned counsel for the parties as also the parties themselves, we are of the view that this cannot be treated as a case of exceptional depravity on the part of the respondent; but, we would think that this would be a case of exceptional hardship to the appellant husband. This is for the reason that, even according to the respondent wife, she was not agreeable for entering into the matrimonial tie. It is her case, going by the pleadings, that this fact could not be intimated to the appellant husband before the marriage. It is also not in dispute that the marriage has not been consummated. Thus, for no fault of the appellant husband, the marriage remains unconsummated, as the respondent wife is not apparently agreeable for consummating the marriage and her case is that the marriage was solemnized against her will. 8. In such circumstances, we would think that the order rejecting the application under Section 14 of the said Act cannot be justified. We, therefore, set aside the impugned order and remit the matter back after allowing the application under Section 14 of the said Act. Accordingly, the Application filed under Section 14 will stand allowed and the petition filed under Section 13 will be proceeded with as per law." 19. The Uttarakhand High Court allowed the application under Section 14 of the Act and remanded the matter back to the Family Court for considering application under Section 13B of the Act even before completion of period of one year as envisaged under Section 13B(1) of the Act to be decided on merits. 20. The Karnataka High Court in Sri Raghavendra Vs. Nil, M.F.A. No. 246/2017 (FC) decided on 30.10.2017 was considering an appeal jointly filed by both husband and wife against the judgment of the Family Court which rejected their application under Section 13B and Section 14(1) of the Act. The appeal was allowed in the following terms: "4. Appellants have filed a joint affidavit reiterating their stand that they are not in a position to live together and that they have voluntarily agreed for divorce by mutual consent. The appeal was allowed in the following terms: "4. Appellants have filed a joint affidavit reiterating their stand that they are not in a position to live together and that they have voluntarily agreed for divorce by mutual consent. We are satisfied that despite best efforts made, parties are not in a position to reconcile their differences and live together. Therefore, it is in the interest of both parties to allow the petition filed under Section 13B of the Hindu Marriage Act, 1956 (sic 1955) by setting aside the order passed by the Court below. 5. Second Appellant-Smt. Lakshmi @ Shweta reiterates before us that a sum of 15 lakhs has been received by her by way of DD bearing No. 087663 dated 28.09.2016 towards permanent alimony and that she has no further claim in the matter against her husband. 6. Having regard to the facts and circumstances of the case as adverted to above, we are of the view that order passed by the Court below deserves to be set aside. 7. Accordingly, this appeal is allowed. Order under challenge is set aside. Interlocutory application filed under Section 14 of the Hindu Marriage Act, 1955 and the petition filed under Section 13B of the Hindu Marriage Act, 1955 are allowed. Marriage of the appellants solemnized on 29.06.2016 is hereby dissolved by mutual consent." 21. Division Bench of the Calcutta High Court in Rabindra Nath Mukherjee Vs. ITI Mukherjee alias Chatterjee, CDJ 1991 Cal HC 017 held that seeking leave of the Court within one year to file the petition for divorce from the date of marriage was only directory and not mandatory. This decision was followed by the Madras High Court in Indumathi Vs. Krishnamurthy, 1998 (III) MLJ 435. Subsequently, the Calcutta High Court in Smt. Priyanka Maity (Ghosh) Vs. Shri Sabyasachi Maity, CDJ 2012 Cal HC 140 reiterated the view taken in Rabindra Nath Mukherjee (supra) and the judgment of Madras High Court in Indumathi (supra). 22. The Madras High Court in G. Ganesh Babu Vs. Krishnamurthy, 1998 (III) MLJ 435. Subsequently, the Calcutta High Court in Smt. Priyanka Maity (Ghosh) Vs. Shri Sabyasachi Maity, CDJ 2012 Cal HC 140 reiterated the view taken in Rabindra Nath Mukherjee (supra) and the judgment of Madras High Court in Indumathi (supra). 22. The Madras High Court in G. Ganesh Babu Vs. A.P. Arthi, C.R.P. (PD)(MD) No. 2265 of 2012 and other connected matters decided on 20.11.2012 was considering challenge to an order passed by the court below which allowed applications filed by the wife under Section 13 of the Act within one year of the marriage as also the application subsequently filed by the wife seeking ex-post facto effect leave under Section 14(1) of the Act. Madras High Court observed that the husband and the wife both happened to be doctors in medical profession and from the view point of the wife, the conduct of the husband in treating her constituted the exceptional circumstances of utmost hardship and discomfiture. The lower court being the first Court of facts, after considering the allegations and counter allegations, thought it fit to virtually grant ex post facto leave and that Court being the revisional Court, was having no reason to interfere with the same. 23. The Allahabad High Court in Manish Sirohi Vs. Smt. Meenakshi, AIR 2007 All 211 was considering challenge to the order of the court below which rejected the application seeking divorce filed by the husband, which was not opposed by the wife. The application was rejected on the ground that as per Section 14 of the Act, the court cannot entertain any petition for dissolution of marriage unless at the date of presentation of the petition one year has elapsed from the date of the marriage. The High Court reversed the order of the court below in the following terms: "we have gone through the provision contained under the proviso to Section 14 of the Act and we find that the High Court can allow to present the petition before lapse of one year from the date of marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. It appears to us that when immediately after marriage no marital relationship developed amongst themselves and they are voluntarily inclined to withdraw relationship, their life should not be allowed to be deserted. It appears to us that when immediately after marriage no marital relationship developed amongst themselves and they are voluntarily inclined to withdraw relationship, their life should not be allowed to be deserted. When differences have occurred which cannot be compromised if at this stage they are separated, they can be able to enjoy their happy marital life elsewhere. Continuance of the litigation will cause mental and physical harassment to them unnecessarily when both of them are not inclined to continue with the relationship at all. Both the parties have withdrawn their allegations and counter allegations against each other." 24. The Allahabad High Court in Archi Agarwal & Others Vs. Principal Judge, Family Court, Lucknow, 2019 (134) ALR 488 was considering challenge to an order passed by the Family Court which rejected the application preferred by the appellants under Section 14 of the Act for exemption/waiver of one year period from the date of marriage for dissolution of marriage under Section 13B of the Act. The High Court while allowing the appeal and granting a decree of divorce without remitting the matter to the court below in para 11, 12, 15, 18 and 19 held as under: "11. On a plain reading of the said section, it is apparent that the said section is on the statute book with a specific purpose of preventing hasty recourse to judicial process for dissolution of marriage and for the parties to aim at reconciliation and make effort to save their marriage. However, it also cannot be disregarded that the proviso to the said section gives the discretion to the court to allow the party to present a petition for divorce before expiry of one year period from the date of marriage on being satisfied that the case is of extreme depravity on the part of the respondent or extreme hardship to the petitioner. Even sub-section (2) of Section 14 of the Act provides leave for presentation of petition before the expiry of one year period. Hence, it cannot be said that the presentation of petition of divorce before the expiry of one year is completely barred as the proviso comes to the rescue of exceptional cases giving them room and it is a decision to be made by the Court on the merits of the case. Hence, it cannot be said that the presentation of petition of divorce before the expiry of one year is completely barred as the proviso comes to the rescue of exceptional cases giving them room and it is a decision to be made by the Court on the merits of the case. Hence, the learned trial court fell in grave error in proceeding on the premise that the petition cannot be permitted to be presented before period of one year from the date of marriage. 12. It may be noted that the expressions "exceptional hardships" and "exceptional depravity" have not been explained in the Act. Hence, where the petitioner is faced with such hardships that his or her life has turned to be a complete hell or the respondent has committed such a heinous moral offence that it has become completely intolerable to the petitioner it would be possible to pass a decree for divorce without waiting for the expiry of the stipulated period of one year. 15. Having gone through the provision contained under the proviso to Section 14 of the 1955 Act, we find that this Court can allow to present the application/petition before lapse of one year from the date of marriage on the ground that the case is one of exceptional hardship to the appellants or of exceptional depravity on the part of the respondent. It appears that when immediately after marriage no marital relationship developed amongst the appellants and they are voluntarily inclined to withdraw relationship, their life should not be allowed to be deserted. In other words when differences have occurred which cannot be compromised and if at this stage they are separated, they would be able to enjoy their happy marital life elsewhere. In our view, continuance of litigation will cause mental and physical harassment to them unnecessarily when both of them are not inclined to continue with the relationship at all. Therefore, it is a fit case to apply the proviso to Section 14 of 1955 Act in appeal being continuance of original proceeding. 18. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. 18. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. 19. Following the principle of 'live and let live' and the aforesaid legal position, it is desirable and expedient in the interest of justice to grant a decree of divorce when both the parties are present and have jointly filed the instant appeal." 25. Relied judgment of this Court in Ishan Khandelwal Vs. Smt. Nikita Khandelwal (D.B. Civil Misc. Appeal No. 1540/2019 decided on 08.05.2019) does not provide any help to the parties as that judgment appears to have been decided on the assumption as if it was filed seeking waiver from the cooling off period of second motion under Section 13B(2) and does not refer to provisions of Section 13B(1) or Section 14 of the Act. That judgment has to thus be treated as per incuriam and cannot be relied as a precedent. But we have looked for any other decision of this Court to find out whether this Court had the occasion to deal with the question as to whether leave to file and maintain a petition for divorce by mutual consent under Section 13B of the Act, before expiry of one year period from the date of marriage, can be granted by recourse to Section 14 of the Act. This question was dealt with by Division Bench of this Court at Principal Seat at Jodhpur in Jaya Mathur & Ashish Mathur Vs. Nil, (D.B. Civil Misc. Appeal No. 1007/2008 decided on 16.10.2008). In that case, appeal was filed before this Court challenging order passed by the Family Court, Jodhpur which dismissed application under Section 14 of the Act as also application under Section 13B of the Act filed by the appellants therein. Nil, (D.B. Civil Misc. Appeal No. 1007/2008 decided on 16.10.2008). In that case, appeal was filed before this Court challenging order passed by the Family Court, Jodhpur which dismissed application under Section 14 of the Act as also application under Section 13B of the Act filed by the appellants therein. Along with the appeal, application under Section 13B as also application under Section 14 of the Act were also filed, which were supported by the affidavits of the parties. It was stated that the wife lodged a criminal complaint against the husband before the competent court which was sent for investigation to the police. A case for offence under Sections 498A, 406, 323 and 354 IPC was registered against the husband. In that proceedings, Stridhan was handed over to the wife. Prayer was therefore made to grant leave as envisaged under Section 14 of the Act to entertain application under Section 13B of the Act even if the period of one year from the date of marriage had not lapsed. Division Bench of this Court dismissed the appeal holding that leave cannot be granted to waive the waiting period in a mechanical manner and the parties had failed to show sufficient reasons for doing so. Division Bench of this Court while dismissing the appeal, observed as under: "Assuming without deciding this issued whether this period referred under Sections 14 and 13B are mandatory or not, we found that even if the period given in Sections 14 and 13B are not mandatory, then also, the appellants cannot succeed because of the reason that they failed to show any reason for dispensing with the waiting period either under Section 14 or under Section 13B. It appears that both the appellants believe that the provisions of law, which are not mandatory, can be ignored by the court of law and relief can be granted without there being any lawful reason. The statutory provisions cannot be made useless provision of law by giving such an interpretation that the parties can ask the Court to waive the waiting period that too in mechanical manner when their exists no reason for doing so." 26. The statutory provisions cannot be made useless provision of law by giving such an interpretation that the parties can ask the Court to waive the waiting period that too in mechanical manner when their exists no reason for doing so." 26. Perusal of the aforesaid judgment would clearly show that this Court did not dispute the proposition of law that leave under Section 14 of the Act in appropriate case can be granted to maintain a petition under Section 13B even before expiry of period of one year envisaged under sub-section (1) thereof. But it held that in the facts of that case, reasons given by the parties were not sufficient for granting such leave. 27. Contrary view expressed by the Allahabad High Court in Arpit Garg Vs. Ayushi Jaisawal, First Appeal No. 115/2019 decided on 06.05.2019 and the Madhya Pradesh High Court in Kapil Agrawal Vs. Smt. Priti Agrawal, F.A. No. 55/2016 decided on 02.03.2016 that proviso to Section 14(1) of the Act is not applicable to Section 13B of the Act, does not commend to us. The Allahabad High Court in Arpit Garg (supra) did not even notice two earlier Division Bench Judgments of the same High Court in Manish Sirohi (supra) and Archi Agarwal & Others (supra). The binding precedents of two Benches of co-equal strength having been ignored, subsequent decision in Arpit Garg (supra) has to be taken as per incuriam. Similarly, the Madhya Pradesh High Court in Kapil Agrawal (supra) also did not notice the view expressed by many other High Courts and though it noticed the Division Bench judgment of the Allahabad High Court in Manish Sirohi (supra), but did not discuss why did it not agree with the same. The Allahabad High Court in Manish Sirohi (supra) has taken a categorical view that the Court, by invoking the provisions contained in proviso to Section 14(1) of the Act, can allow the petition for divorce even before the lapse of period of one year from the date of marriage on the ground of case being of "exceptional hardship to the petitioner" or of "exceptional depravity on the part of the respondent". The Madhya Pradesh High Court in Kapil Agrawal (supra) has not given any cogent and valid reasons for not following the ratio of aforesaid judgment of Allahabad High Court, except observing that condition of living separately for a period of one year envisaged under Section 13B(1) is mandatory. There can be no quarrel with the proposition that this condition may be mandatory, but when the law itself has carved out exception to this mandate in proviso to Section 14(1) of the Act, that mandate would stand relaxed, if the Court, on given material, arrives at the satisfaction that the matter falls in either of two exceptional circumstances, envisaged in the proviso to Section 14(1) of the Act. 28. Detailed and thorough examination of the precedents on this issue reveal that law in this regard has sufficiently developed that an application for grant of decree of divorce by mutual consent under Section 13B of the Act can be filed even before expiry of period of one year from the date of marriage, subject to leave of the Court by filing application under Section 14(1) of the Act. If the Court is satisfied that the case is one of "exceptional hardship to the petitioner" or of "exceptional depravity on the part of the respondent", it can grant such leave but the aforementioned proviso has given a rider that if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. 29. 29. Before however granting the leave under proviso to Section 14(1) of the Act, the Court has to record its satisfaction as to the facts; (i) that the parties are mature enough to comprehend the implication of their decision; (ii) that parties are not under any kind of coercion, intimidation or undue influence; (iii) what has been the total duration of marriage; (iv) whether or not marriage has been consummated and if so, whether or not the wife has conceived; (v) that the marriage has reached the stage of complete breakdown, their being absolutely no possibility of reconciliation; (vi) that the application filed by the parties is result of serious deliberations and lacks frivolity; (vii) that there is no misrepresentation or concealment by either party; (viii) that age of spouses is such that continuance of a sterile marriage will have deleterious effect on the prospects of rehabilitation upon remarriage. Having recorded its satisfaction on these aspects, the Court should then record its finding as to how a case of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent is made out. 30. Perusal of the impugned order passed by the Family Court indicates that the parties not only filed a joint application under Section 13B(1) of the Act for obtaining decree of divorce by mutual consent but they also filed application under Section 14 of the Act. In our view, learned Family Court in the impugned order has rightly observed that the application under Section 14 of the Act does not contain any assertion with regard to two important aspects-namely; that the case is of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. In fact, perusal of the application under Section 14 of the Act filed before the Family Court from the record reveals that it is a hand written application, running into hardly ten lines in only two paras. All that has been stated in the application is that extra ordinary differences arose between the parties owing to which it is not possible for them to live together. The parties have filed a joint application under Section 14 of the Act now before this Court, which is comparatively detailed one, as extracted above. 31. All that has been stated in the application is that extra ordinary differences arose between the parties owing to which it is not possible for them to live together. The parties have filed a joint application under Section 14 of the Act now before this Court, which is comparatively detailed one, as extracted above. 31. Learned counsel for the parties submitted that fresh application filed under Section 14 of the Act can be directly entertained by this Court as well. It is submitted that the facts of the present case makes out a case of exceptional hardship to the appellant or of exceptional depravity on the part of the respondent. Learned counsel for the parties during the course of arguments submitted that there are certain facts which the appellant would not like to narrate in the open Court. In our considered opinion, if there is any such fact which the parties do not wish to state in the pleadings of the application, they can, in view of the legislative intendment, place the same before the Family Court in a sealed cover so as to enable the Family Court to record its satisfaction as to whether a case is made out on the parameters of Section 14 of the Act. 32. Considering that the Family Court, as the Court of first instance, has not applied its mind to the grounds now set up by the parties in application jointly filed before this Court under Section 14 of the Act, we instead of examining such plea, deem it appropriate to remit this matter to that Court. We make it clear that we have not expressed either way on such plea set up in the application directly filed before this Court. Liberty is granted to the appellant/parties to file detailed application under Section 14(1) of the Act before that Court. It would also be open for the parties to plead such further and additional grounds with specific instances or produce them in sealed cover, which may bring their case in either of the exceptional categories. If any such application is filed by the parties, the Family Court shall hear the parties either in the open Court or in camera proceedings and take appropriate view of the matter. 33. In view of above, present appeal is allowed in part. If any such application is filed by the parties, the Family Court shall hear the parties either in the open Court or in camera proceedings and take appropriate view of the matter. 33. In view of above, present appeal is allowed in part. Impugned order is set aside and the matter is remanded back to the Family Court with direction to decide the same within two months from the date of filing of fresh application under Section 14 of the Act before it along with copy of this judgment.