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2022 DIGILAW 1678 (ALL)

Kanhaiya Kanaujiya v. Tara Devi

2022-10-18

CHANDRA KUMAR RAI, SURYA PRAKASH KESARWANI

body2022
JUDGMENT : Heard Sri Rajeev Kumar Saxena, holding brief of Sri Vinod Kumar Yadav, learned counsel for the appellant-husband. 1. This appeal under Section 19 of the Family Courts Act, 1984 has been filed praying to set aside the judgment and order dated 27.7.2022 in Case No.597 of 2021 (Kanhaiya Kanaujiya vs. Tara Devi), under Section 13-B of Hindu Marriage Act, passed by the Additional Principal Judge, Family Court No.3, Varanasi, whereby the Application (9C) dated 10.5.2022, filed by the appellant-husband and the divorce petition filed on 22.3.2021, have been dismissed. 2. Briefly stated facts of the present case are that the appellant-husband has allegedly filed a joint petition with the defendant-respondent, under Section 13-B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the “Act, 1955”) on 22.3.2021 which was registered as Case No.597 of 2021. The defendant-wife never appeared in the aforesaid case. Subsequently, on 10.5.2022, appellant-husband filed an application (9C). In paragraph no. 7 of the affidavit, accompanying the appeal, the appellant has stated as under:- “The appellant has filed an application (9C) dated 10.5.2022 in which he has stated that both the parties entered into compromise/settlement for dissolution of marriage with the consent. The true copy of the notary affidavit prepared by the appellant and opposite party no. 2 dated 22.3.2021 is being filed herewith and marked as Annexure No.2 to this affidavit.” 3. Perusal of Annexure-2 to the aforesaid affidavit shows that it is a notarized compromise dated 19/22.3.2021, allegedly entered by the appellant and the respondent herein. The application (9C) has not been filed. As per own admitted case of the appellant, he alone has filed an application (9C). Thus, the application (9C) cannot be presumed to be a second motion jointly by the parties as per provisions of Section 13-B (2) of the Act, 1955. Under the circumstances, dismissal of the application (9C) and the petition under Section 13-B of the Act, 1955 by the impugned judgment and order dated 27.7.2022, cannot be said to suffer from any illegality. 4. In the case of Smt. Sureshta Devi vs. Om Prakash, 1991(2) SCC 25 , (Paras 9, 10 & 11) the Hon’ble Supreme Court considered the question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent, and held, as under:- “9. 4. In the case of Smt. Sureshta Devi vs. Om Prakash, 1991(2) SCC 25 , (Paras 9, 10 & 11) the Hon’ble Supreme Court considered the question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent, and held, as under:- “9. The 'living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression 'living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they 'have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. 10. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the Court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce. 13. If the Court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce. 13. From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be party to the joint motion under sub-section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub- section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties .... if the petition is not withdrawn in the meantime, the Court shall... pass a decree of divorce ….” . What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bonafides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.” 5. In the case of Hitesh Bhatnagar vs. Deepa Bhatnagar, (2011) 5 SCC 234 , (Paras 14 and 15) the Hon’ble Supreme Court considered the provisions of Section 13-B(2) of the Act, 1955 and held, as under:- 14) The language employed in Section 13B(2) of the Act is clear. The Court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met: a. A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub- section (1) and not later than 18 months; b. After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and c. The petition is not withdrawn by either party at any time before passing the decree; In other words, if the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression ‘divorce by mutual consent’ would be otiose. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression ‘divorce by mutual consent’ would be otiose. 15) In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no Court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant. 6. Considering the provisions of Section 13-B of the Act, 1955 and the law laid down by Hon’ble Supreme Court in the judgments aforenoted, we are of the view that a petition under Section 13-B of the Act, 1955 for dissolution of marriage by consent, may be presented to the District Court by both the parties to a marriage together, on the ground that they have been living separately from one year or more and they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. After the petition under Section 13-B(1) has been jointly presented by parties to a marriage together then sub-section (2) of Section 13-B of Act, 1955 shall come into play. 7. As per the provisions of Section 13-B(2), a second motion of both the parties can be made not earlier than 6 months after the date of presentation of the petition under subsection (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. 8. 8. Thus, the Court is bound to pass a decree of divorce declaring dissolution of marriage of the parties with effect from the date of decree if (a) - a second motion of both the parties is made not earlier than 6 months from the date of presentation of the petition as referred in sub-section (1) and not later than 18 months; (b)- after hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments are true; (c)- the petition is not withdrawn by either party at any time before passing decree. In other words, if the second motion is not made within the period not earlier than 6 months of presentation of the petitioner and not later than 18 months after the said date, then the Court is not bound to pass a decree of divorce by mutual consent. Either of the parties are free to withdraw their consent at any time before the court passes decree. It is clarified that the period specified in Section 13-B (2) of the Act, 1955 for second motion is not mandatory but directory and it is open to the Court to exercise discretion in the facts and circumstances of each case. The factors for exercising discretion have been enumerated by Hon’ble Supreme court in Amardeep Singh Vs. Harveen Kaur (2017) 8 SCC 746 (Paras17 and 20) and Amit Kumar Vs. Suman Baniwal (Civil Appeal No.7650 of 2021 decided on 11.12.2021. 9. The most important requirement for a grant of decree of divorce by mutual consent is free consent of both the parties. Unless there is a complete agreement between the husband and the wife for dissolution of marriage and unless the Court is completely satisfied, it cannot grant a decree by mutual consent. 10. In the present set of facts, we find that the second motion under sub-section (2) to Section 13-B by both the parties, has never been moved. As per own allegation of the husband-appellant, he alone has moved application (9C). Thus, in the absence of second motion, not having been moved by both the parties to the marriage, court cannot pass a decree of divorce. In such circumstances, even question of withdrawal or non-withdrawal of consent before the expiry of 18 months is not required to be looked into. Thus, in the absence of second motion, not having been moved by both the parties to the marriage, court cannot pass a decree of divorce. In such circumstances, even question of withdrawal or non-withdrawal of consent before the expiry of 18 months is not required to be looked into. That apart, the respondent wife never appeared in the aforesaid petition No.597 of 2021 under Section 13-B of the Act 1955. This shows either no consent or implied withdrawal of consent by the respondent wife. 11. In view of aforesaid, we do not find any error of law in the impugned judgment dated 27.7.2022 passed by the court below whereby the application (9C), individually moved by appellant-husband in alleged compliance of sub-section (2) of 13-B of the Act, 1955 and dismissal of the petition filed under Section 13-B, cannot be said to suffer from any illegality. 12. For all the reasons aforestated, we do not find any merit in the appeal. Appeal is totally frivolous and, therefore, deserves to be dismissed. 13. In result, the appeal is dismissed.