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2020 Supreme(Pat) 560
IN THE HIGH COURT OF PATNA
Dinesh Kumar Singh, Arvind Srivastava, JJ.
Rajeev Ranjan - Appellants
Vs.
Nootan Kumari - Respondent
Miscellaneous Appeal No. 1071 of 2016 in Civil Miscellaneous Jurisdiction No. 105 of 2016
Decided On : 25-09-2020
For the Appellant :Manoj Kumar Sinha, Advocate
For the Respondents:Manoj Kumar, Advocate
The appellate court cannot grant a decree for divorce under Section 13-B of the Hindu Marriage Act, and the waiting period stipulated in Section 13-B is mandatory.
Headnote:
Dissolution of Marriage - Hindu Marriage Act - Section 12(1)(a) and (c), Section 13-B - 2012(1) CHN 636 : 2011(3) CLJ (Cal.) 177, (2009) 10 SCC 415
Fact of the Case:
The appellant filed an appeal against the dismissal of the matrimonial case seeking nullity of marriage. The parties later agreed to dissolve the marriage with mutual consent and filed a joint affidavit.
Finding of the Court:
The court found that the appellate court cannot entertain an application for divorce by mutual consent directly, and the waiting period stipulated in Section 13-B of the Hindu Marriage Act is mandatory. However, the parties' intent to dissolve the marriage was acknowledged, and they were allowed to file the necessary petitions in the Family Court.
Issues: The main issue was whether the marriage could be dissolved with mutual consent at the appellate stage after the dismissal of the matrimonial case seeking nullity of marriage.
Ratio Decidendi: The court held that the appellate court cannot grant a decree for divorce under Section 13-B of the Act, and the waiting period mentioned in Section 13-B is mandatory. However, the parties were allowed to file the necessary petitions in the Family Court for dissolution of marriage with mutual consent.
Final Decision: The appeal was disposed of, and the parties were allowed to file the necessary petitions in the Family Court for dissolution of marriage with mutual consent.
Certainly. Based on the provided legal document, here are the key legal points:
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The appellate court cannot directly grant a decree of divorce under Section 13-B of the Hindu Marriage Act at the appellate stage. Such applications must be filed before the district court (or Family Court exercising that jurisdiction) (!) (!) .
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The waiting period stipulated in Section 13-B(2) of the Hindu Marriage Act is mandatory. This period must be observed, and the court cannot bypass or shorten it through judicial discretion (!) .
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An application for divorce by mutual consent under Section 13-B is an original application that can only be filed before the appropriate district court or Family Court, not directly before an appellate court (!) (!) .
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If a marriage has been dissolved through a mutual consent application filed before the proper forum, this does not preclude the parties from subsequently filing a fresh application under Section 13-B, provided the statutory conditions are met (!) .
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The law emphasizes that the conditions for dissolution by mutual consent include the parties living separately for at least one year and mutually agreeing to dissolve the marriage, among other procedural requirements (!) (!) .
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The withdrawal of a matrimonial case for nullity or annulment does not preclude the parties from filing an application under Section 13-B for mutual divorce, especially if the parties are willing and the other conditions are satisfied (!) (!) .
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The process for dissolution of marriage with mutual consent requires adherence to the statutory procedure, and courts are bound by the prescribed forum and timeline. Judicial discretion cannot be used to bypass these statutory requirements (!) (!) .
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The parties' mutual agreement, including settlement of alimony, transfer of assets, and withdrawal of criminal cases, can facilitate the filing and disposal of an application under Section 13-B, but the application must still be filed before the proper forum and in accordance with the law (!) (!) .
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The courts are expected to dispose of such applications expeditiously once the statutory conditions are satisfied, and the parties' mutual consent and settlement terms are duly documented (!) (!) .
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Overall, the legal framework mandates that applications for divorce by mutual consent must follow the prescribed statutory procedures, and courts cannot entertain such applications at the appellate level or bypass the mandatory waiting period unless extraordinary powers are exercised by the Supreme Court under specific constitutional provisions (!) (!) .
Please let me know if you need further analysis or assistance.
JUDGMENT :
Dinesh Kumar Singh, J.
1. Heard learned counsels for the parties.
2. I.A. No. 8602 of 2016 was filed for condoning the delay of sixteen days in preferring the present appeal. The delay was condoned vide order dated 5.1.2018.
M.A. No. 1071 of 2016
3. Initially, the appellant Rajeev Ranjan alias Rajeev Sharma, the husband of the sole respondent Nootan Kumari, preferred Civil Miscellaneous Case No. 105 of 2016 against the order dated 29.2.2016 passed by the learned Principal Judge, Family Court, Patna in Matrimonial Case No. 576 of 2013 whereby the Matrimonial case filed by the respondent wife under Section 12(i)(a) and (c) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for a decree of nullity of marriage was dismissed as withdrawn since the respondent filed withdrawal application with clear stipulation that the matrimonial case was filed under pressure of the appellant. The provision, as quoted in the application has been wrongly quoted and the same is required to be read as Section 12(1)(a) and (c) of the Act. The said Civil Miscellaneous Application was directed to be converted into the present Miscellaneous Appeal vide order dated 4.8.2016 passed by a learned Single bench of this Court.
4. The factual matrix of the case is that the marriage between the appellant and the respondent was performed on 18.5.2013 but the marriage was never consummated. Ultimately, the respondent wife preferred Miscellaneous Case No. 576 of 2013 under Section 12(1)(a) and (c) of the Act praying therein for a decree of nullity of marriage. However, on 8.7.2014, the respondent wife filed a petition for withdrawal of the matrimonial case stating therein that the same was filed under threat of the appellant husband. A rejoinder to the petition was filed by the appellant husband on 10.9.2015 before the learned Court below to the effect that he had filed the supplementary written statement dated 24.02.2014, whereby he had claimed to have no objection to the declaration of nullity of marriage, and accordingly, the learned Principal Judge, Family Court, Patna dismissed the Matrimonial Case No. 576 of 2013 as withdrawn. The same is under challenge in the present Miscellaneous Appeal.
5. It appears that while admitting this appeal vide order dated 9.3.2018 by the Division Bench of this Court, the appellant undertook to pay maintenance amount of Rs. 12,000/- per month to the respondent and for the month of March, 2018, such amount was agreed to be paid within a period of two weeks and the appellant was directed to make payment of such amount till disposal of the appeal.
6. It is submitted by learned counsel for the appellant that the said monthly payment was made till July, 2019 and the matter was lastly heard on 5.8.2019. During the course of hearing of the appeal, a joint affidavit dated 22.7.2019 vide I.A. No. 4 of 2019 has been filed for the amendment of the prayer in the present appeal to the effect that now the appellant and the respondent have decided to get the marriage dissolved with consent on payment of one time permanent alimony of Rupees Nineteen Lacs by the appellant to the sole respondent, out of which a draft of Rupees Nine Lacs drawn in the Bank of Baroda, S.K. Puri Patna branch was handed over to the learned counsel for the respondent on 29.7.2019 which has been encashed by the respondent. The balance amount of Rupees Ten Lacs was paid to the respondent through her counsel vide a draft drawn on SBI, Shivpuri Branch and apart from the same, jewellery and other articles have been returned and the parties have decided not to claim anything against each other. The terms of Agreement is stipulated in paragraph no. 5 of the joint affidavit dated 22.7.2019 which reads as follows:
"5. That the parties here to have agreed on the following terms and conditions:-
(i) The appellant herein shall pay a lump-sum amount of Rs. 19,00,000/- (Nineteen Lakhs) as one time settlement vide two demand drafts in favour of respondent wife Nootan
