2013 Supreme(Bom) 2580

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT. V.K. TAHILRAMANI & V.L. ACHLIYA, JJ.
In Re : Mittal Ramesh Panchal & Anr.
Family Court Appeal No. 201 of 2013 with Civil Application No. 300 of 2013
Decided On: 23rd December, 2013

Headnote:HINDU MARRIAGE ACT, 1955 - Section 13-B - Divorce by mutual consent. - Where parties not pleaded customary divorce at all, therefore rejection of petition for divorce by mutual consent on ground that marriage already dissolved by deed of divorce as per custom prevailing in caste and community, improper. - The appellants have approached with a specific case that their marriage was not legally dissolved by virtue of Deed of Divorce executed on 13.6.2011 and, therefore, in the circumstances narrated in detail in the petition, the appellants have sought the decree of divorce by mutual consent by filing petition under Section 13-B of Hindu Marriage Act. The appellants have neither pleaded nor argued before the Family Court that their marriage was legally dissolved as per custom and usages prevailing in their caste and community. On the contrary they have specifically pleaded that at the time of the execution of Deed of Divorce they were not knowing the procedure recognized under the law for dissolution of marriage. The customary divorce can either be plea or defence setup by one of the party to such proceeding wherein the issue in respect of legality of the divorce by customary mode is involved. Without any pleadings to that effect the Judge on his own inferred the case of customary divorce. Therefore the rejection of petition for this reason also not sustainable in law.

       HINDU MARRIAGE ACT, 1955 - Section 13-B - Inquiry under by Court. - While dealing with petition under Section 13-B of Act for divorce by mutual consent, Court is expected to confine its inquiry on conditions. - While dealing with the petition under Section 13-B, the Court is expected to confine its inquiry on following aspects :

       (i) Whether the marriage has been solemnized between the parties;

       (ii) Whether the parties have been living separately for more than a year before presenting the petition;

       (iii) Whether they were not able to live together at the time of presenting the petition and continue to live apart;

       (iv) Whether they had mutually agreed to dissolve the marriage before or at the time the petition was presented, and

       (v) Whether the averments made in the petition are true and conditions under Section 23 are fulfilled.

       On making limited inquiry, if the Court is satisfied that aforesaid conditions are fulfilled, the decree of divorce deserves to be passed in such matter.

       HINDU MARRIAGE ACT, 1955 - Section 13-B - Petition for divorce by mutual consent. - Since marriage between parties still legally subsisting hence petition under Section13-B of Act is maintainable. - The Judge has also rejected the petition by observing that the marriage between the appellants already dissolved by virtue of deed of divorce dated 13.6.2011, i.e. as per custom and usages prevailing in their caste and community and, therefore, the petition under Section 13-B of Hindu Marriage Act is not maintainable. This conclusion to which the Judge has arrived are not sustainable, both on facts and in law. There is no provision under the Hindu Marriage Act which provides for automatic dissolution of marriage. The dissolution of marriage as per custom and usages is one of the mode of dissolution of marriage recognized under the law. In general, the marriage can be dissolved only by recourse to the provisions contained in the Hindu Marriage Act. In the present case the appellants have approached with a case that while execution of deed of divorce dated 13.6.2011 they were not aware that such dissolution of marriage is not recognized under the law. They had acted under the belief that the marriage can be dissolved by execution of Deed of Divorce. Only after the refusal of Visa to appellant on the ground of non- production of a decree of divorce from competent Court, the appellants realized that the competent Court alone can pass decree of divorce. Thus the appellants, though acted under impression that their marriage was dissolved by virtue of deed of divorce executed between them and remarried after the execution of said deed, but legally the marriage between the appellants still subsists. Therefore, the petition filed under Section 13-B of Hindu Marriage Act, is maintainable in law.

       HINDU MARRIAGE ACT, 1955 - Section 13-B(2) - Divorce by mutual consent. - Though waiver of statutory period of 6 months not specifically provided in provision yet same can be read in provision with main object of it to liberalize divorce. - The statutory period of six months provided under Section 13-B(2) has been provided with a specific intent that the possibility of last minute reconciliation can be worked out in such matters. In dispensation of justice, the Courts are expected to do the justice between the parties by overcoming the technical difficulties, coming in the way of imparting justice. The waiver of statutory period of six months though not specifically provided but same can be read in provisions as the main object of provision is to libralize divorce. The provision cannot be read in rigidity so as to make the provision ineffective and meaningless. The period of six months is nothing but period provided with a view to enable parties to reconsider their decision and instead of dissolving their marriage resolve their differences. It was never the intention of the legislature that such period is to be observed irrespective of the facts of the case wherein the marriage has been irretrievably broken and there are no chances of reconciliation between the parties or it would be futile exercise to wait for six months.

       HINDU MARRIAGE ACT, 1955 - Section 13-B(2) - Civil Procedure Code, Section 151 - Divorce by mutual consent. - Where marriage between parties irretrievably broken down and no chances of reconciliation therefore waiver of statutory period of 6 months, permissible.