HINDU LAW: DIVORCE
BY MUTUAL CONSENT & EMERGING PRINCIPLES
ANIL
K KHAWARE
ADVOCATE
Hindu Marriage is considered as
sacramental Union. Earlier, there was hardly any codified mechanism to married
couples to separate. Then, Hindu Marriage Act 1955 ( In short “HMA” or “HMA
1955”) was enacted as a comprehensive body of law dealing with the aspects of marriage
and other matrimonial issues amongst Hindus, such as solemnization of marriage,
prohibitions, regulations as well as divorce. Still, the law has undergone
changes, since then and whereas, inter
alia divorce is permitted on the premise of cruelty, desertion and change
in religious faith as contained under Section 13 (1)(i) (ia) (ib) & (ii) of
HMA 1955. Then, in 1976, the HMA was amended vide Amendment Act 1976, w.e.f
27.05.1976, adultery and incurable unsoundness of mind were also added as
ground. It is also of paramount importance that Section 13 A and Section 13-B
were inserted in the HMA w.e.f 27.05.1976. The present article, though, shall
remain within the broad contour of Section 13 B i.e provision envisaging divorce with mutual consent. We know
that conventional and contested divorce proceedings entail time and its
offshoot is prolonged agony to the couples. The, section 13 B was inserted in the HMA 1955 to
enable married couple to invoke it, should, by mutual consent, separation is
sought for, by both the couple. The pre-requisites could be worked out by such
couple to fast track the matter i.e divorce by mutual consent.
Before going further, it will be apt to
reproduce section 13 B of HMA
1955:
Divorce by Mutual Consent -(1) Subject to the
provisions of this Act a petition for dissolution of marriage by a decree of
divorce may be presented to the District Court by both the parties to a marriage
together, whether such marriage was solemnized before or after the commencement
of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that
they have been living separately for a period of one year or more, that they
have not been able to live together and that they have mutually agreed that the
marriage should be dissolved.
(2) On the motion of both the parties made, not earlier than
six months after the date of the presentation of the petition referred to in
sub-section (1) and not later than eighteen months after the said date, if the
petition is not withdrawn in the meantime, the Court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that
a marriage has been 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.]
From the bare perusal
of above, it is manifest that the object of the statute is to accord adequate time
to the couple for any probable re-think or to see if there is probability of
reunion and therefore, 18 months separation is envisaged i.e 12 months
separation, before filing mutual divorce plea and Six (6) months, thereafter,
in two intervening motions before a court of competent jurisdiction. The
matrimonial cases impact the very foundation of a family and hence, the
cherished object is to save a family or marriage, but, at the same time, in the
context of the modern world, if there is irretrievable or perceived breakdown
of marriage, and temperamentally, it is not feasible for the couple to live
together, then, outlet to come out of the morass is also carved out and 13 B of
HMA is one such mechanism.
Under Section 13 B(1).
A divorce petition therefore could be moved by a couple
following a judicial separation of one year before a District Court of
competent jurisdiction.
The fulcrum of
section 13 (B) of HMA is to live separately for a period of at least one
preceding year before preferring the petition for seeking dissolution of
marriage and both the parties are on the same page as regards seeking
dissolution of marriage. The term “living separately” has no magical charm and
the context of it is aptly illustrated by hon’ble Supreme Court in a matter
captioned as Sureshta
Devi v Om Prakash (1992)
AIR SC 1904. It is not material, if the
parties lived under the common roof. It is suffice, that both of them are not
living as husband and wife and no matrimonial obligations knits them together
and they do not intend to live like husband and wife. The trap of the section
shall thus be met, if the animus and action of living separately is evident.
The crux of the matter is that the parties to the marriage are not living as
husband and wife and does not intend to live as husband and wife.
After satisfying the above twin requirements and filing a joint
petition for divorce by mutual consent, the parties must wait for at least six
months, usually termed as the “cooling period”. After the end of this period,
if the initial petition is not withdrawn by either of the parties or jointly,
both the parties may move court by way of joint motion within the stipulated
period of 18 months from the initial date of the filing of the joint petition.
This period is given to parties to re-think their decision.
COOLING PERIOD: JUDICIAL PERSPECTIVE
The hon’ble Supreme Court has over the period of time has simplified the
requirement of cooling period. In other words, the fetter of cooling period is
not mandatory and in apt case to arrest the misery and prolonged agony of
couple, trial courts are permitted to waive off the cooling period of Six (6)
Months in the facts and circumstances of the case. It
held that no doubt cooling-off period is to afford safeguard against any hasty
decision, but to let purposeless marriage, continue, when there has been
irretrievable breakdown, shall not serve the purpose.
Whereas, the Hindu Marriage Act 1955, at the time of its
enactment did not contain the provision of 13 –B (1) & (2), relating to
dissolution of Marriage, by mutual consent, which became part of statute book
in 1976 and subsequently Family Courts Act (FCA) 1984 was also enacted and
hence comprehensive modalities are now in place. The object of the FCA was to
adopt human approach to settlement of family disputes to achieve socially
desirable objects. It was in 1974, when under the chairmanship of Chief Justice PB Gajendragadhkar, Law
Commission, while submitting 59th Report on Hindu Marriage Act 1955
and Special Marriage Act 1954 opined:
“
In our Report on the Code of Civil Procedure, we have had occasion to emphasis
that in dealing with disputes concerning the family, the Courts ought to adopt
a human approach radically different from that adopted in ordinary civil
proceedings & that the Courts should make reasonable efforts of settlement
before commencement of trial. In our view, it is essential that such an
approach should be adopted in dealing with matrimonial disputes. We would
suggest that in due course, State should think of establishing Family Courts
with Presiding officers who will be qualified in law, no doubt, but who will be
trained to deal with such disputes in a human way & to such courts all
disputes concerning the family should be referred”
FAMILY COURTS ACT 1984
The Family Courts Act (FCA) 1984 has therefore been constituted
pursuant to report as afore-stated and the matrimonial issues between the
parties are adjudicated by the District Courts i.e Principal Family Court headed
by District Judge or Additional District Judge or the Family Judge headed by Additional District
Judge
The provision of Jurisdiction of Family Courts comes under
Chapter III and Section 7 of the Family Courts Act 1984. As per Section 7 (a)
of the act FCA 1984, a Family Courts shall exercise jurisdiction exercisable by
any district court or any sub-ordinate civil court under any law for the time
being in force in respect of suit and proceedings of the nature referred to in
the explanation; and as per section 7
(b) of the FCA it will be deemed, for the purpose of exercising such
jurisdiction under such law, to be a district court or, as the case may be a
district court or, as the case may be, such sub-ordinate civil court for the
area to which the jurisdiction of the Family Courts extends.
Explanation: The following nature of suit or proceedings shall be dealt with
under FCA 1984:
(a)
A suit or proceedings between a parties to a
marriage for a decree of nullity of marriage or restitution of conjugal rights
or judicial separation or dissolution of marriage;
(b)
A suit or proceedings for a declaration as to
the validity of a marriage or as to the matrimonial status of any person;
(c)
A suit or proceedings
between the parties to a marriage with respect to the property of the parties
or of either of them.
(d)
A suit or proceedings
for an order or injunction in circumstances arising out of a marital
relationship.
(e)
A suit or proceedings
for a declaration as to the legitimacy of any person;
(f)
A suit or proceedings
for maintenance;
(g)
A suit or proceeding in
relations to the guardianship of the person or the custody of, or access to ,
any minor
As per Section 7 (2) subject to other provisions of this Act, a
Family court shall also have and exercise-
(a)
The jurisdiction
exercisable by a Magistrate of the First Class, under Chapter IX (relating to
order for maintenance of wife, children
and parents of the Code of Criminal Procedure; and
(b)
Such other jurisdiction as may be conferred on
it by any other enactment.
Section 9 of the FCA casts a duty upon the family courts Judge to
assist and persuade parties to come to a settlement. As per Section 11 of FCA
the proceedings under the act is held in camera. Section 19 of Family Courts Act relates to
appeal against any judgment or order not being interlocutory order, before the
high court, on facts and law, however, as per Section 19(2) of the Act, no
appeal shall lie against the consent order. The limitation period of such
appeal shall be Thirty (30) days from the date of judgment or order passed by
the Family Courts. The term interlocutory order is not defined in the family
Courts act 1984.
DISCUSSION ON NATURE OF SEC. 13- B (2)
The
object of the provision is to enable the parties to dissolve a marriage by
consent if the marriage has irretrievably broken down and to enable them to rehabilitate
them as per available options. The amendment was inspired by the thought that
forcible perpetuation of status of matrimony between unwilling partners did not
serve any purpose. The object of the cooling-off period was to safeguard
against a hurried decision if there was otherwise a possibility of differences
being reconciled. Though every effort has to be made to save a marriage, if
there are no chances of reunion and there are chances of fresh rehabilitation,
the Court should not be powerless in enabling the parties to have a better
option. The period mentioned in Section 13B(2) was not mandatory but directory,
it would be open to the Court to exercise its discretion in the facts and
circumstances of each case where there was no possibility of parties resuming
cohabitation and there were chances of alternative rehabilitation.
LAW
Bhuwan
Mohan Singh Vs Meena & Ors (2015) 6 SCC 353
The hon’ble Supreme Court in Para 13 had observed as under:
“….A Family Court
Judge should remember that procrastination is the greatest assassin of the lis
before it. It not only gives rise to more family problem, but also gradually
builds unthinkable and Everestine bitterness. It leads to cold refrigeration of
the hidden feelings, if still left. The delineation of the lis by the family
judge must reveal the awareness & balance. Dilatory tactics by any of the
parties has to be sternly dealt with for the family courts judge has to be
alive to the facts that the lis before him pertains to emotional fragmentation
& delay & can feed it to grow….”
In a matter captioned as Smruti Pahariya Vs Sanjay Pahariya
bearing Civil Appeal No. 3465/2009 the hon’ble Supreme Court had noted that
Ex-parte decree of divorce was granted by the family court u/s 13- B. Though,
the joint petition was filed, but husband failed to appear after the first
motion. The counsel for both the parties were the same. The efforts of service
on husband failed and later on, order of substituted service was passed and the
case was preponed on the application of wife and on the preponed date itself
ex-parte decree was passed. The High Court of Bombay had set aside the decree
and the wife (petitioner) had thus approached the Supreme Court.
The Supreme Court while upholding the order of Bombay High Court,
thereby, ex-parte decree of divorce granted by the family court was set aside,
observed that courts should be slow and circumspect before passing decree and
should be satisfied about mutual consent, between the parties, on the basis of
some tangible materials, which should clearly show, the existence of mutual
consent and continued mutual consent is imperative for this purpose.
Whether The Waiting
Period Of Six Months Is Mandatory Or Directory
SUPREME COURT
(i)
In
the case of Ashok
Hurra v Rupa Ashok, AIR
1997 SC it was held that “in exercise of its extraordinary powers
under Article 142 of the Constitution, the Supreme Court can grant relief to
the parties without even waiting for the statutory period of six months
stipulated in s. 13-B of the Act. This doctrine of irretrievable break-down of
marriage is not available even to the High Courts which do not have powers
similar to those exercised by the Supreme Court under Article 142 of the
Constitution.”
Therefore, the courts have been inclined more towards waiving
off this period, if the circumstance of the case demands so, and where there is
no chance of reconciliation, between the parties. Also, Supreme Court by way of
its extraordinary powers as provided under Article 142 of the Indian
Constitution can grant divorce without waiting for 6 months if it is satisfied
that the marriage is irretrievably broken down. However, this power is
restricted only to Supreme Court. There is still uncertainty whether High
Courts and Family Courts have to mandatorily wait for a period of Six (6)
months. However, as it is evident from many cases, where there is no
possibility of reconciliation between the parties and the marriage has been
broken down irretrievably, the courts should follow the spirit of law more than
the formal requirements of the section.
The Apex Court proceeded to hold
that the period mentioned in Section 13 B(2)
isn't mandatory but directory & held as under:
The
Supreme Court has held that if 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 6
months specified in Section 13B(2), in addition to the statutory period of 1
year under Section 13B(1) of separation of parties is already over before the
1st motion itself;
ii) all efforts for
mediation or conciliation including efforts in terms of Order XXXII A Rule
3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite
the parties have failed & there is absolutely no likelihood of success in
that direction by any further efforts;
iii) the concerned parties have
genuinely settled their differences including alimony, custody of child, any
other pending issues between the parties;
iv) the waiting
period will only prolong their agony.
It
was thus held by the hon’ble Supreme Court that since 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
& circumstances of each case, where there is no possibility of parties
resuming cohabitation & there're chances of alternative rehabilitation.
(ii) In Dr Budhi Kota Subbarao Vs K parasaran & Ors AIR 1996 SC 2687 it is held by Supreme Court:
“No
litigant has a right to unlimited drought on the court time & public money
in order to get his affairs settled in the manner he wishes. However, access to
justice should not be misused as a licence to file misconceived and frivolous
petition.
(iii) Amardeep singh vs harveen kaur (2017) 8 SCC. 746.
The question which arises for consideration in this
appeal is whether the minimum period of Six (6) months stipulated under Section 13B(2) of the Hindu Marriage
Act, 1955 (the Act) 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 Apex Court proceeded to hold
that the period mentioned in Section 13 B
(2) isn't mandatory but directory & held the following:
“we
are of the view that where the Court
dealing with a matter is satisfied that a case is made out to waive the
statutory period under Section 13B(2), it can do so after considering the
following :-
i) the statutory period of 6
months specified in Section 13B(2), in addition to the statutory period of 1
year under Section 13B(1) of separation of parties is already over before the
1st motion itself;
ii) all efforts for
mediation or conciliation including efforts in terms of Order XXXII A Rule
3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the
parties have failed & there is absolutely no likelihood of success in that
direction by any further efforts;
iii) the concerned parties have
genuinely settled their differences including alimony, custody of child, any
other pending issues between the parties;
iv) the waiting
period will only prolong their agony.
It
was thus held by the hon’ble Supreme Court that since the period mentioned in
Section 13B(2) is not mandatory but directory, it will be open to the Court to
exercise its discretion in the facts & circumstances of each case, where
there is no possibility of parties resuming cohabitation & there're chances
of alternative rehabilitation.
(iii) Manish Goel v. Rohini Goel 2010(2)SCR 414The hon’ble Supreme Court has held that statutory period of Six (6) months for filing the second petition u/s 13 (B) (2) of the Act has been prescribed, only, with a view to provide opportunity to the parties to reconcile their differences and withdraw the consent and petition for dissolution of marriage. In the present case, the petitioner had earlier filed a petition before a court of Gurgaon and subsequently before a family court in Delhi during the pendency of earlier petition and it clearly amounted to forum shopping. Moreover, just within Three (3) months of marriage the couple started living separately from each other and immediately after One year of separate living, two petitions were filed. Clearly, it lacked bona fide and therefore it is held that Article 142 which is extra-ordinary power available to the supreme Court could not have been invoked for waiving off cooling period. (iv) In Dr Budhi Kota Subbarao Vs K Parasaran & Ors AIR 1996 SC 2687 it is held by Supreme Court:
“No litigant has a
right to unlimited drought on the court time & public money in order to get
his affairs settled in the manner he wishes. However, access to justice should
not be misused as a licence to file misconceived and frivolous petition.
HIGH COURTS
ON COOLING PERIOD
So far as the six months cooling
period (Section 13 B (2) of HMA) between the two motions for divorce with
mutual consent is concerned, whether that is mandatory or directory has always
been a debatable issue. The clear principles could not emerge earlier. In
the Grandhi Venkata Chitti Abbai AIR 1999 AP 91 , the court observed that-
“If Section 13-B (2) is read as mandatory, the very purpose of liberalizing the
policy of decree of divorce by mutual consent will be frustrated, more so, when,
the parties started living separately for a considerable time. Thus s 13-B (2) of
HMA, though, is mandatory in form, but, is directory in substance. Likewise, in
the case of Dinesh Kumar Shukla v
Neeta, AIR 2005 MP 106 it
was held that the waiting period is directory in nature and it can be brought
down from Six (6) months (provided the mandatory requirements of s 13-B (1) are
fulfilled) when all efforts at reconciliation failed.
But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi, AIR 2000 AP 364 it was held that “the
provision has a definite purpose and object, i.e. giving time to the parties
for introspection and reconciliation. That purpose and object stares at us so
clearly by the language expressed in s 13-B (2) of the Act robbing away the
right of the court from considering the petition earlier than six months.”
The
basic law thus emerges that if the parties were living separately for sufficiently
long period, and arrived at a settlement for all the disputes between them including
the issue of payment of permanent alimony
as agreed, before filing the petition for divorce and if there are absolutely
no chances of living together or second thought on the issue or in other words
marriage is irretrievably broken down and there is no chances of reconciliation,
there is no need for them to wait for another Six (6) months as required under
the section.
In
the past, the Supreme Court has given waiver to parties for this 'cooling
period' but these cases have been exceptional. The question posed before the
court was that whether courts can give relaxation to parties with regard to the
6-month waiting period mentioned under the section without placing reliance on
Art. 142 of the Constitution. If the provisions are not mandatory, then there
is no need for the courts to apply Article 142 for waiving off this period.
INTERPLAY BETWEEN ART. 142 AND STATUTORY
PROVISIONS OF A LEGISLATION
While
arriving at the decision, the court initiated the discussion on the interplay
between Art. 142 of the Constitution and the statutory provisions of a
legislation. The court cited several decisions of its own court where it was
held that Art. 142 cannot be used to subvert or evade the scope of substantive
provision of a statute. The power granted under the Article should only be used
in certain exceptional circumstances.
The
court also examined certain cases where this cooling period was waived because
the court felt that the marriage has broken down irretrievably and the waiting
period will only cause mental agony to the parties.
In
its conclusion, the court held that the correct law has been laid down in Manish Goel v. Rohini Goel
(Supra) , stating that jurisdiction of the Supreme Court
under Article 142 could not be used to waive the statutory period of six months
for filing the second motion Under Section 13B, as doing so will be passing an order
in contravention of a statutory provision. Generally, no court has competence
to issue a direction contrary to law nor can the court direct an authority to
act in contravention of the statutory provisions. The courts are meant to
enforce the Rule of law and not to pass the orders or directions which are
contrary to what has been injected by law.
PRINCIPLES OF COOLING PERIOD WAIVER – AS EMERGED
If the Court dealing with a matter is
satisfied that a case is made out to waive the statutory period Under Section
13B (2), it can do so after considering the following:
i.
The statutory period of six months
specified in Section 13B(2), in addition to the statutory period of one year
Under Section 13B(1) of separation of parties is already over before the first
motion itself;
ii.
All efforts for mediation/conciliation
including efforts in terms of Order XXXIIA Rule 3 Code of Civil
Procedure/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 at the discretion of the
concerned Court. The Court can also use the medium of video conferencing and
also permit genuine representation of the parties through close relations such
as parents or siblings where the parties are unable to appear in person for any
just and valid reason as may satisfy the Court, to advance the interest of
justice.
CONSENT GIVEN
CANNOT BE WITHDRAWN
The hon’ble Delhi High Court in the matter
captioned as Shikha Bhatia Vs Gaurav Bhatia & Ors Cont Cas (C) 274 of 2009 has found the respondent/contemnor as guilty
of contempt in as much as it is held that if a party to the lis, who
categorically undertakes to comply with the consent given in the proceedings
before the family courts in first motion while seeking dissolution of marriage
in terms of joint petition under Section 13B(1) of the Act cannot be allowed to
withdraw from the consent. The agreement once entered upon or reached between
the parties cannot resile from it and it cannot be whimsically ignored while
filing second motion and such a motion cannot be allowed
In Avneesh
Sood vs Tithi Sood bearing Civil Contempt Petition No. 559 OF 2011 & C.M.1932 OF 2012 |
the hon’ble Delhi High Court held on the aforesaid line.
APPEAL OR WRIT IN
HIGH COURTS
Though, provision of appeal is provided for u/s 19 of FCA 1984,
but, the same is against the judgment or any substantive order and not against
interlocutory orders. When a petition u/s 13 B of HMA is filed by parties for
seeking divorce by mutual consent, and if the parties, prefer early disposal of
their case, just after first motion, an application seeking exemption from
undergoing cooling period of Six (6) Months is prayed for, or in other words
waiver of the cooling period of Six (6) Months are sought by the parties. In
case, the application seeking waiver is declined, the remedy available to the
parties is to approach respective High Courts by way of a writ petition, since,
the declining of application for waiver of cooling period may not be a
substantive order. Since, appellate order shall be available only against the
final order or substantive order as per section 19 of FCA 1984, hence, writ
petition is preferred by a party or parties by impugning the order of declining
waiver.
The view taken by the high courts in this regard are as under:
|
S.N |
PARTICULARS |
REMARK |
|
1. |
Madhya Pradesh High Court Kavisha Kukreja vs Puneet Kekreja on 3 October, 2017 W.P. No.5537/2017 |
In the light of the judgment pronounced by
hon’ble Supreme Court in the case of Amardeep
Singh V/s. Harveen Kaur (Supra) wherein it is held that 13 B(2) of HMA is
not mandatory, but directory, and court may apply their discretion in facts
and circumstances of each case and if it is found that there is no
possibility of parties settling the matter. Cooling period was thus waived
off. |
|
2. |
Smt. Iti vs Sharad WP-8119-2016 |
The hon’ble Supreme Court has
held in a matter captioned as Yogendra
Yadav & Ors Vs State of Jharkhand & Anr (2014) 9 SCC 653 is that in the event settlement/compromise petition is filed by
the parties, the criminal proceedings should be quashed to secure the ends of
justice. It was with a view to avoid wastage of time and resources as no
useful purpose could be served to continue with the criminal proceedings
relating to matrimonial offence even in non- compoundable cases, as the
exercise of continuing with case may be futile due to settlement. |
|
3. |
MP No. 2857/2018 (Smt. Baljeet
Kaur Vs Harjeet Singh) |
Amardeep singh case ratio of Apex court followed in writ petition and
family court was directed to pass appropriate order. |
|
4. |
Smt. Vartika Prasad Bhargav vs Nitin Kumar Prasad on 17
September, 2019 WP
No. 19522/2019 (SMT. VARTIKA
PRASAD BHARGAVA VS NITIN KUMAR) |
Amardeep
singh case (Supra) ratio of Apex court followed in writ petition and family
court was directed to pass appropriate order. |
|
5. |
Chhatisgarh High Court [Raju Kumar In
re, 2021 SCC OnLine Chh 564, |
Applying
the ratio of Amardeep Singh ( Supra), the high court has laid down the
following principles: (i)
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 : (a)
the statutory period of six months specified
in 13 B (2), in addition to the statutory period of one year under 13
B (1) of separation of parties is already over before the first motion
itself; (b) all efforts for mediation/conciliation including efforts in
terms of Order 32-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; (c) the parties have genuinely settled their differences
including alimony, custody of child or any other pending issues between the
parties; (d) the waiting period will only prolong their agony. (e) all efforts for
mediation/conciliation including efforts in terms of Order XXXIIA 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; (f) the parties have
genuinely settled their differences including alimony, custody of child or
any other pending issues between the parties; |
|
6. |
Allahabad High Court Arpit Garg Vs Ayushi Jaiswal Allahabad High Court) FIRST APPEAL No. - 115 of 2019 13 B(1)
|
Held that the one year separation preceding to the filing of mutual consent petition for seeking dissolution of marriage is an integral condition before filing a petition and if a petition is filed after the separation of less than one year after marriage, then, the petition shall not be maintainable. It was held as premature and against the principles laid down in section 13-B of the HMA. |
|
|
Madras
High Court in the case of P.Lydia Jenifar vs.
S.Rajadurai in
C.M.A.(MD)No.395 of 2017 (Decided on 20.09.2017), |
relying
upon ample number of judgments, has given a categorical finding that granting
divorce to a couple, after considerable period of time, is nothing but
operation success but patient died and has held as follows: Another
question whether direction could be issued to family court by a writ court to
pass the decree of divorce by waiving off cooling period of six months. It is
held that as 13 (B) (2) is held as directory in
view of the law laid down in the case of Nikhil Kumar v. Rupali Kumar reported in AIR 2016 SC
2163, in the case of Virendra Singh Rajak vs. Seema Rajak reported in 2015
(3) MPLJ 188 and in the case of Deepak (Dr.) v. Smt.Tanuja reported in 2003
(2) JLJ 121 the cooling period is liable to be waived off and the learned
Family Court could be directed to pass the divorce decree. |
Permanent
alimony
It is no res integra
now that any of the spouses may be entitled to maintenance or permanent
alimony.
In a discussion u/s 13 (B) (1) & (2) the discussion on
permanent alimony that may be payable to the wife is integral. Section 25 of
HMA 1955 contains the principles that at the time of passing of decree of
divorce or subsequently thereto, if application is preferred by husband or
wife, the court shall order to pay the alimony payable to any party and the
amount so calculated shall be monthly sum or periodical sum for a term not
exceeding the life of the applicant as having regard to the
respondent/non-applicant’s own income and other property. Through 1976
amendment, the relevant criteria added in this regard is the conduct of the
parties and circumstances of the case. The Section also provision for making
charge on immoveable properties of respondent. The Section 25(2) includes
change of circumstances after granting of maintenance as relevant and the order
may accordingly be varied or modified or rescinded. Section 25 (3) is of
importance, in as much as , remarriage by spouse is a relevant criteria as also
the issue of remaining chaste. Under Section 18 of Hindu Adoption &
maintenance Act 1956 (HAMA) only wife can seek interim maintenance or
maintenance whereas u/s 24 and 25 of HMA 1955 both husband and wife can seek
maintenance or permanent alimony.
REMARK
The law as regards dissolution of marriage by mutual consent as
per section 13 (B) (1) &(2) has evolved over the years and after enacting
of the HMA 1955. It was after a
considerable while that HMA 1955 was Amendment Act 1976 was passed vide that
Section 13 B (1) & (2) was inserted in the statute book. The Law Commission
of India in the meanwhile had recommended for constituting Family Courts and
Family Courts Act 1984 was eventually codified and thereafter the matters
related to family disputes remained the exclusive domain of family courts. The
law and precedents even on 13 (B) (1) & (2) continued to evolve keeping in
mind the welfare of family and even enforcing and facilitating, severance of
nuptial ties, if the continuance in relationship was found irretrievably
ruptured with no plausible chance of reconciliation. Though, the cherished object
of the FCA 1984 and HMA 1955 as other laws for the time being in force has been
to save marriage, but, when the continuation in marriage is akin to gangrene
and the agony is likely to be prolonged and unabated , then outlet is devised.
The Acts, provisions, law and precedents, has stood the test of time. Though,
life is a dynamic process and no changes could be treated as permanent, but,
surely, the family laws and judicial
precedents have risen to the occasion.
--------------
