2008 Supreme(Bom) 775

2008(4) ALL MR 461
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SWATANTER KUMAR, C.J. & V. M. KANADE, J.
Principal Judge –Appellant.
Versus.
Nil – Respondent.
Civil Reference No.2 of 2007
Decided on :12th June, 2008.

Headnote:Hindu Marriage Act, 1955 - Sections 10 and 13-Divorce petition-Burden of proof-Lies upon party to establish and prove grounds pleaded by it for seeking such a relief from Court-Rule of reasonable proof-Attracted to proceedings either under Section 10 or under Section 13 of Act.- The rule of reasonable proof is applicable to the proceedings before the Court of competent jurisdiction either under Section 10 or under Section 13 of the Act, as the case may be. In other words, burden of proof shall lies upon the party to establish and prove the grounds pleaded by it for seeking such a relief from the Court. There is clear distinction between the provisions of Section 10 and 13 on one hand and Section 13-B of the Act on the other. In terms of Section 13-B there is hardly any burden of proof on either of parties as the foundation thereof is by mutual consent. The Court is granted power to dissolve the marriage between the parties by a decree of divorce on the ground of mutual consent. In fact it is an exception to the proceedings under any other provision before the Court of competent jurisdiction for dissolving the marriage between the parties.

       Hindu Marriage Act, 1955 - Section 13-B-Divorce-By mutual consent-Statutory waiting period of 6 months under Section 13-B(2) of Act-Mandatory and not directory-As cause of action completed only upon conclusion of period-Mandates Court to satisfy requirements of law before passing a decree.-The above dictum of the Supreme Court clearly lays down the law that the period specified by Legislature as pre-requisite to filing and grant of a decree for divorce on mutual consent is expected to be complied with and its observance is not discretionary at the whim of the Court. The legislative scheme clearly shows that the specified periods are not optional for the parties to be complied with because the cause of action is completed only upon conclusion of the period and clearly mandates the Court to satisfy the requirement of law before passing a decree.

       Hindu Marriage Act, 1955 - Section 13-B(1) and (2)-Divorce-By mutual consent-Statutory waiting period for-Waiving of-Power of Court-Court has no power to condone delay or waive period stipulated either under Section 13-B(1) or under Section 13-B(2) of Act-Limited right allowed to parties to seek divorce by mutual consent.-Section 13-B does not provide omnibus jurisdiction to the Court but grants such specific and/or special jurisdiction. The Court can pass decree for divorce on mutual consent only upon satisfaction of the grounds stated therein and subject to the satisfaction of the period specified in law. The Court has not been vested with any specific or even general power to condone the delay or waive the period stipulated either under Section 13-B(1) and for that matter under Section 13-B(2). The Legislature in its wisdom allowed the parties a limited right to seek divorce by mutual consent provided the parties present the petition in the Court of competent jurisdiction on the ground that they have been living separately for a period of one year or more they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Once such a petition is filed the Court has to satisfy itself of these requirements and thereafter the parties are expected to take out a second motion which again has to be a joint motion but not earlier than six months and later than 18 months. Still the parties have to satisfy the Court that the said petition was not withdrawn and the Court is expected to record its satisfaction after hearing the parties and on making such enquiry as it thinks fit that the averments in the petition are true, Court may pass a decree declaring the marriage to be dissolved on the ground of mutual consent. Apparently the decree for divorce by mutual consent is dependent on fulfilment of the requirements aforenoted and due satisfaction of the Court. This cannot be termed as merely directory as the statute does not even impliedly indicate such intent of the Legislature. The provision of a statute must be given its plain meaning and requirement of law stated under those provisions should be satisfied before the relief under the specific provision can be granted to the parties.