Research › Search › Judgment

Andhra High Court · body

2025 DIGILAW 162 (AP)

Arumalla Krishna Kishore Reddy, S/o Sambi Reddy v. Arumalla Sujatha, W/o. Krishna Kishore Reddy, D/o. Venkat Subba Reddy

2025-01-28

CHALLA GUNARANJAN, RAVI NATH TILHARI

body2025
JUDGMENT : (Ravi Nath Tilhari, J.) Heard Sri S. Krishna Reddy, learned counsel for the appellant/husband and Sri K. K. Durga Prasad, learned counsel for the respondent/wife. 2. This appeal under Section 28 of the Hindu Marriage Act has been filed by the appellant/husband, challenging the Judgment and Decree, dated 25.04.2023 passed in H.M.O.P.No.220 of 2018 on the file of the Senior Civil Judge, Bhimavaram. The HMOP was filed by the appellant/husband under Section 13 (1) (ia) (ib) of the Hindu Marriage Act, 1955 seeking divorce on the ground of cruelty and desertion. After contest, the HMOP was dismissed, holding that there was no merit in the petition to grant divorce. 3. During the pendency of the appeal, I.A.No.1 of 2024 was filed to record the memorandum of compromise dated 16.12.2024 and to allow the HMOP No.220 of 2018 in terms of the compromise. 4. The Memorandum of Understanding and the Memorandum of Terms of Compromise are annexed to I.A.No.1 of 2024 and are signed by both the parties. 5. I.A.No.2 of 2024 has also been filed to waive the waiting period of six months under Section 13-B (2) of the Hindu Marriage Act, and to allow the HMOP No.220 of 2018 in terms of the compromise and grant divorce. 6. In terms of memorandum of compromise, both the parties are residing separately since 2013. They had no issues. There is no relationship of husband and wife between them since 2013. The marriage is irretrievably broken down. There is also no chance of reunion, as the mediation and conciliations failed. So, the parties decided to take divorce by mutual consent by arriving at compromise. 7. The terms of compromise, as per para-3 of Memorandum of Compromise, are as under: “3. It is submitted that the parties have compromised on the following terms: i. The appellant-petitioner herein has agreed to pay a sum of Rs.10,00,000/-(Rupees Ten Lakhs) towards her final and full settlement of her permanent alimony to the respondent and the amount is paid by way of two Demand Drafts bearing Nos.674014 and 674015 dated 17-12-2024 each in the name of respondent drawn through with Indian Bank, Tenali and the amount shall be paid to the respondent during the disposal of the above appeal. ii. ii. Further the appellant and respondent agreed that the respondent shall withdraw the maintenance in M.C.No.49 of 2019 and D.V.C.No.37 of 2019 pending on the file of the learned Addl. Judicial 1 st Class Magistrate, Bhimavaram filed against the appellant and his other family members. iii. It is also decided between the appellant and respondent that there is nothing to be exchanged in between them any articles and that they have mutually agreed not to proceed against each other in future in any manner as the things between them have been settled amicably. iv. It is agreed by both the appellant-petitioner and the respondent that they shall not interfere each other day to day life in any manner even by any way of communication and the respondent shall not have any kind of future claims against the appellant-petitioner and both of them shall execute all such necessary papers that are required to show that they have obtained divorce under mutual consent.” 8. On 02.01.2025 both the parties were present with their respective counsels. This Court passed the following Order: “I.A.No.1 of 2024 has been filed by the petitioner/husband to dispose of the appeal in terms of compromise. 2. I.A.No.2 of 2024 has also been filed by the petitioner/husband seeking divorce by mutual consent under Section 13-B (2) of the Hindu Marriage Act, 1955. 3. A joint memo has been annexed to the application, settling the terms of the compromise. 4. The parties are present along with their respective counsels. 5. Let the compromise be verified by the Registrar (Judicial) with due authentication of the parties. After such authentication, a report may be placed on record. 6. Post on 09.01.2025.” 9. The Registrar (Judicial) of this Court submitted his report, that the parties were identified by their respective counsels, with their identify proof of Aadhar cards. Both the parties submitted that the terms of the compromise were admitted and they voluntarily signed the application and the joint memos, terms of compromise. The wife also received Rs.10,00,000/- towards permanent alimony, vide two demand drafts for Rs.5,00,000/- each, both dated 17.12.2024. The report of the Registrar (Judicial) dated 02.01.2025 is on record. On 09.01.2025 both the parties along with their respective counsels were present and they stated that the decree of divorce on mutual consent be granted in terms of the compromise. 10. The wife also received Rs.10,00,000/- towards permanent alimony, vide two demand drafts for Rs.5,00,000/- each, both dated 17.12.2024. The report of the Registrar (Judicial) dated 02.01.2025 is on record. On 09.01.2025 both the parties along with their respective counsels were present and they stated that the decree of divorce on mutual consent be granted in terms of the compromise. 10. The learned counsel for the appellant, as also the respondent, submitted that the marriage has been broken down irretrievably and there are no chances for reunion. Both the parties are residing separately for the last more than 11 years, and that they had no issues. The amount of permanent alimony has been settled. The parties have arrived at the compromise without any pressure, coercion or undue influence by any of the parties. 11. Learned counsel for the appellant placed the following judgments for consideration of the Court, to contend that the cooling off period of six months under Sec.13-B of the Hindu Marriage Act may be waived off as also for the proposition that an application under Sec.13-B of Hindu Marriage Act, 1955 can be filed at the stage of appeal also. 1. Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 . 2. K. Omprakash v. K. Nalini, 1985 SCC OnLine AP 98. 3. R. Sraswathy Devi v. M. Manoharan, 2013 Supreme (Online) (KER) 8607. 12. We have considered the aforesaid submissions. 13. In K. Omprakash (supra) the application of the husband under Section 13 of Hindu Marriage Act for dissolution of marriage was dismissed by the learned Chief Judge, City Civil Court, Hyderabad. He filed appeal. Duringpendency of the appeal, the parties entered into settlement. In appeal before the High Court, they filed the compromise memo to pass a decree for divorce declaring the marriage to be dissolved by mutual consent, ignoring the allegations and the counter allegations made by the parties against each other in the petition under Section 13. This Court framed the question, whether Section 13 B (2) of the Hindu Marriage Act under which divorce by mutual consent can be granted, permits the granting of such decree of divorce in the appeal, and held that Section 13-B (2) does not impose any fetter on the powers of the Court to grant instant decree of divorce. This Court framed the question, whether Section 13 B (2) of the Hindu Marriage Act under which divorce by mutual consent can be granted, permits the granting of such decree of divorce in the appeal, and held that Section 13-B (2) does not impose any fetter on the powers of the Court to grant instant decree of divorce. It was also observed that the time table fixed by Section 13-B (2) does not apply to an appellate Court. It was held that it could not have been the intention of Section 13-B (2) that the appellate Court should always drive the fighting parties to go through the purposeless forms of meaningless ceremony of petitioning again for consent divorce waiting and watching the completion of necessary number of revolutions of this mother earth around the unmoving sun. 14. Paragraphs 8 and 9 of K. Omprakash (supra) are as under: “ 8. Section 13-B is introduced into the statute book by means of the Marriage Laws (Amendment) Act, 1976. It permits, for the first time, dissolution of a Hindu marriage by mutual consent of parties provided the parties have been living separately after their marriage for a period of one year or more and that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Section 13-B radically altered the legal basis of a Hindu marriage by treating it as an ordinary form of contract which competent parties can enter into and put an end to like any other contract by mutual consent. Just as the parties can obtain a consent decree fromthe Courts under Order 23 Rule 3 C.P.C., so they can now under Section 13-B of the Hindu Marriage Act obtain a consent divorce. Sri S.V. Gupta in his Hindu Law 3rd (1981) Edition, Volume 2 page 300. commenting on this change, wrote: “This is a very radical amendment as it enables divorce by consent. It also virtually puts a death -nail on the old of Hindu Law and Hindu morality that marriage is a sacrament and not a contract”. However, a petition filed for divorce by consent under Section 13-B of the Hindu Marriage Act is required to be kept in abeyance for a minimum period of six months. It also virtually puts a death -nail on the old of Hindu Law and Hindu morality that marriage is a sacrament and not a contract”. However, a petition filed for divorce by consent under Section 13-B of the Hindu Marriage Act is required to be kept in abeyance for a minimum period of six months. This is in sharp contrast with a petition filed for divorce by consent under Special Marriage Act which is liable to be kept in abeyance at least for one year. This liberalising trend of law in the matter of granting divorce by consent cannot be lost sight of by Courts in interpreting that Section. But even, then Clause (2) of Section 13-B requires a Court not to pass a decree for divorce before six months of time lapses and after 18 months of time passes from the date of filing of such a petition for divorce by mutual consent. This is the last hope of the legislature for saving the marriage. The intention of the legislature is to provide a minimum period of six months for re-thinking of the parties. If the above time-table fixed by Section 13-B (2) of the Hindu Marriage Act is applied to the present application made by the parties in this case on 12th July, 1985. We have to adjourn this case till January, 1986 for passing a decree for divorce under that Section, notwithstanding the fact that we are of the opinion that there is no chance of reconciliation between the parties who have been living away from each other for the last years and are to-day most anxious and ready to obtain such a decree here and now. That situation raises somewhat an important legal question as to the meaning which we should attribute to Section 13-B (2) of the Hindu Marriage Act. That question is whether the Legislature intended that Section 13-B (2) of the Hindu Marriage Act should be treated as a mandatory provision of law or the Legislature intended that Section to be treated merely as a directory provision of law. We have already noticed the language of Section 13-B (2). On first impressions it is not impossible to hold Section 13-B (2) to be mandatory. We have already noticed the language of Section 13-B (2). On first impressions it is not impossible to hold Section 13-B (2) to be mandatory. As a mandatory provision of law calls for its pound of flesh and requires to be complied strictly and it not being satisfied with offerings of more substantial compliance of its commands, we will have to adjourn this matter for six months and postpone the deliverance to the parties from this deadlock by that period of time. It is well settled proposition of law that a statutory provision, though mandatory in form can yet be treated as directory in substance. The question then arises whether there is anything in the text of this Section 13-B (2) or its context or purpose or design that calls for Section 13-B (2) being interpreted as directory ? In our opinion, there are weighty reasons warranting the reading of Section 13-B Clause (2) as directory. In that context we must first call attention to the design of the law expressed in its liberalising tendency of providing relief to parties on the basis of their mutual consent from their broken marriages. We must remember that this relief is granted by bringing about a profound alteration in the concept of a Hindu Marriage from that of a sacrament to a contract. By that alteration law has definitely set its fact against forcible perpetuation of the status of matrimony between unwilling partners. Next we must note that this six month's time fixed by Section 13-B (2) is not a rule relating to the jurisdiction of the Courts to entertain a petition filed for divorce by consent. That question of jurisdiction is dealt with, by Section 13-B (1) of the Act and must be strictly complied with. Section 13-B (2) is a part of mere procedure. A procedural provision must be interpreted as a handmaid of justice in order to advance and further the interests of justice and not as a technical rule. Above all we should note that if Section 13 B (2) is read as a mandatory provision and as applicable to the exercise of matrimonial jurisdiction by the Appellate Courts also, Section 13-B (2) becomes totally unworkable. According to the literal reading of Section 13-B (2). Above all we should note that if Section 13 B (2) is read as a mandatory provision and as applicable to the exercise of matrimonial jurisdiction by the Appellate Courts also, Section 13-B (2) becomes totally unworkable. According to the literal reading of Section 13-B (2). the Courts cannot pass consent decree of divorce beyond 18 months period from the date of its filing, in the event such an application is filed by the parties and the Courts for some reason of human error or failure did not or could not dispose it of within the said period of 18 months, the literal reading of Section 13-B (2) prevents the Courts from granting that relief thereafter. Similarly if a petition for divorce by mutual consent is filed before the lower Court and was dismissed by the lower Court for some reason, the appellate Court would bepowerless to grant that relief on the basis of the application filed in the lower Court because 18 months must had elapsed by the time the matter reached the appellate forum although the parties are still fighting relentlessly in the appellate Court. These considerations lead us to hold that it could not have been the intention of Section 13-B (2) that the appellate court should always drive the fighting parties to go through the purposeless forms of meaningless ceremony of petitioning again for consent divorce waiting and watching the completion of necessary number of revolutions of this mother earth around the unmoving sun. 9. For all the above reasons, we are of the opinion that Section 13-B (2)of the Hindu Marriage Act should be read as directory only. Section 13-B (2), no doubt cautions the Courts of its duty to fight the last ditch battle to save the marriage; but when the Court is fully satisfied, on the basis of the proved facts, that in the interests of justice of the society and the individuals marriage tie should be put as under immediately. Section 13-B (2) does not impose any fetter on the powers of the Court to grant instant decree of divorce. At any rate, we are clearly of the opinion that the time-table fixed by Section 13-B(2) does not apply to an appellate Court. The great Telugu Poet Vemana said that the broken iron can be Joined together, but not broken, hearts. At any rate, we are clearly of the opinion that the time-table fixed by Section 13-B(2) does not apply to an appellate Court. The great Telugu Poet Vemana said that the broken iron can be Joined together, but not broken, hearts. Parties have been living apart for long and their wedlock has now virtually become a deadlock. Chances of reunion had completely faded away. In these circumstances, we think it just and proper to grant a decree of divorce straightaway. Accordingly we pass a decree of divorce declaring the marriage between the appellant and the respondent as dissolved with immediate effect.” 15. So, it has been held in K. Omprakash (supra) that an application under Section 13-B of Hindu Marriage Act, 1955 is maintainable at the stage of appeal against the decree passed in divorce case and also that the waiting period under Section 13-B (2) is directory and not mandatory. 16. In R. Sraswathy Devi (supra), the Division Bench of the Kerala High Court held, that the legislative policy disclosed in the requirement that the Court should wait for six months is to give an opportunity to the parties to see if the marriage can be saved. However, in cases like the present one where the parties are before the appellate Court after having fought a battle in the trial Court and where the Court is satisfied that the parties had sufficient time to think over their own future and have come to a definite conclusion that the marital relationship has to be terminated, the Court should take a liberal view of the procedural requirement and refrain from insisting on the waiting period of six months. In the said case, the parties were residing separately for more than 5 years, and the wife encashed the cheque given by the husband in terms of the compromise. So, it was held that the parties should not be subjected to a fresh waiting period of six months, and dispensed with the requirement of waiting period. 17. Paragraph-5 of R. Sraswathy Devi (supra) is as under: “5. The surviving question is whether the prayer of the parties for dispensing with the six months waiting period is to be allowed. So, it was held that the parties should not be subjected to a fresh waiting period of six months, and dispensed with the requirement of waiting period. 17. Paragraph-5 of R. Sraswathy Devi (supra) is as under: “5. The surviving question is whether the prayer of the parties for dispensing with the six months waiting period is to be allowed. It is true that under Section 13B (1) of the Hindu Marriage Act, it is mandatory that once an application for divorce is filed, the Court should wait for six months period after presentation of the application. This is a case where the Family Court has already granted a decree of divorce by its order dated 6.12.2012 and by I.A.No.2160/2013, the said order of divorce is sought to be modified into one based on mutual consent.” 18. In Amardeep Singh (supra) the question for consideration was whether the minimum period of six months stipulated under Section 13-B(2) of the Hindu Marriage Act, 1955 for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations. The Hon’ble Apex Court held that the period mentioned in Section 13-B(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. 19. In Amardeep Singh (supra) the Hon’ble Apex Court held as under in paras-19 and 20: “ 19. 19. In Amardeep Singh (supra) the Hon’ble Apex Court held as under in paras-19 and 20: “ 19. 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 13-B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself; (ii) all efforts for mediation/conciliation including efforts in terms of Order32-A 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.The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned. 20. Since we are of the view that the period mentioned in Section 13-B(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.” 20. Recently, in Shilpa Sailesh v. Varun Sreenivasan , [ (2023) 14 SCC 231 ] the Constitution Bench observed and held that the object of cooling off period is not to stretch the already disintegrated marriage, or to prolong the agony and misery of the parties when there are no chances of the marriage working out. However, the waiver is not to be given on mere asking, but on the Court being satisfied beyond doubt that the marriage has shattered beyond repair. 21. Paras-24, 25, 26 and 28 of Shila Sailesh (supra) read as under: “ 24. However, the waiver is not to be given on mere asking, but on the Court being satisfied beyond doubt that the marriage has shattered beyond repair. 21. Paras-24, 25, 26 and 28 of Shila Sailesh (supra) read as under: “ 24. Section 13-B(1) of the Hindu Marriage Act states that a decree of divorce may be granted on a joint petition by the parties on fulfilment of the following conditions: (a) the parties have been living separately for a period of one year or more before presentation of the petition; (b) they have not been able to live together; and (c) they have mutually agreed that the marriage should be dissolved. 25. Sub-section (2) to Section 13-B of the Hindu Marriage Act provides that after the first motion is passed, the couple/parties would have to move to the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than eighteen months of the first motion. No action can be taken by the parties before the lapse of six months since the first motion. When the second motion is filed, the court is to make an inquiry, and on satisfaction that the averments made in the petition are true, a decree of divorce is granted. Clearly, the legislative intent behind incorporatingsub-section (2) to Section 13-B of the Hindu Marriage Act is that the couple/party must have time to introspect and consider the decision to separate before the second motion is moved. 26. However, there are cases of exceptional hardship, where after some years of acrimonious litigation and prolonged suffering, the parties, with a view to have a fresh start, jointly pray to the court to dissolve the marriage, and seek waiver of the need to move the second motion. On account of irreconcilable differences, allegations and aspersions made against each other and the family members, and in some cases multiple litigations including criminal cases, continuation of the marital relationship is an impossibility. The divorce is inevitable, and the cooling off period of six months, if at all, breeds misery and pain, without any gain and benefit. On account of irreconcilable differences, allegations and aspersions made against each other and the family members, and in some cases multiple litigations including criminal cases, continuation of the marital relationship is an impossibility. The divorce is inevitable, and the cooling off period of six months, if at all, breeds misery and pain, without any gain and benefit. These are cases where the object and purpose behind sub-section (2) to Section 13-B of the Hindu Marriage Act to safeguard against hurried and hasty decisions are not in issue and question, and the procedural requirement to move the court with the second motion after a gap of six months acts as an impediment in the settlement. At times, payment of alimony and permanent lump sum maintenance gets delayed, while anxiety and suspicion remain. Here, the procedure should give way to a larger public and personal interest of the parties in ending the litigation(s), and the pain and sorrow effected, by passing a formal decree of divorce, as de facto the marriage had ended much earlier. 28. The time-gap is meant to enable the parties to cogitate, analyse and take a deliberated decision. The object of the cooling off period is not to stretch the already disintegrated marriage, or to prolong the agony and misery of the parties when there are no chances of the marriage working out. Therefore, once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation, the court is not powerless in enabling the parties to avail a better option, which is to grant divorce. The waiver is not to be given on mere asking, but on the court being satisfied beyond doubt that the marriage has shattered beyond repair. The judgment in Amardeep Singh [Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 : (2017) 4 SCC (Civ) 804 : (2017) 3 SCC (Cri) 505] refers to several questions that the courtwould ask before passing an order one way or the other. However, this judgment proceeds on the interpretation of Section 13-B(2) of the Hindu Marriage Act, and does not examine whether this Court can take on record a settlement agreement and grant divorce by mutual consent under Section 13-B of the Hindu Marriage Act in exercise of the power under Article 142(1) of the Constitution of India.” 22. However, this judgment proceeds on the interpretation of Section 13-B(2) of the Hindu Marriage Act, and does not examine whether this Court can take on record a settlement agreement and grant divorce by mutual consent under Section 13-B of the Hindu Marriage Act in exercise of the power under Article 142(1) of the Constitution of India.” 22. After considering the submissions advanced jointly from both the sides that there are no chances of reconciliation and reunion, the parties are living separately, in spite of the fact that the petition filed by the husband for divorce was dismissed, and still they are not able to reunite, as also the contents of the compromise including the provision for permanent alimony, and that the said compromise and I.A. for divorce by mutual consent is voluntarily filed and there is no coercion, we are of the view that there is no use under the circumstances of this case, directing the parties to wait for six months cooling off period to obliviate and continue their miseries. When the marriage has been broken down irretrievably and the parties are living separately for the last more than 11 years, we allow the I.A.Nos.1 & 2 of 2024 by waiving of waiting period to grant divorce by mutual consent. 23. Consequently, I.A.Nos.1 & 2 of 2024 are allowed. The Appeal is allowed. The decree dated 25.04.2023, rejecting the divorce petition HMOP.No.220 of 2018 by the learned Senior Civil Judge, Bhimavaram, is set aside and the marriage between the appellant and the respondent is dissolved under Section 13-B of the Hindu Marriage Act with effect from the date of this judgment. No order as to costs. 24. The Terms of Compromise and Memorandum of Understanding, I.A.Nos.1 & 2 of 2024, and also the report of the Registrar (Judicial) shall form part of the decree. Pending miscellaneous petitions, if any, shall stand closed in consequence.