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2011 Supreme(Cal) 1215
High Court of Judicature at Calcutta
SUBHRO KAMAL MUKHERJEE, TAPAN KUMAR DUTT & PRAKHAT KUMAR DEY
Rita Bhattacharjee & Another Shrimati Swapna Mukherjee
Versus
Santiranjan Bhattacharjee & Another Shri Jyotirmay Mukherjee
F. A. T. No. 419 of 2008 (C.A.N. 8852 of 2008)
Decided On : 01-09-2011
For the Petitioner:Mr. Mahendra Prasad Gupta, Mr. Biswajit Basu, Mr. Koushik Chatterjee, Mr. Susenjit Banik, Mr. P. Goswami, Ms. Riya Banerjee, Advocates.
For the Respondents:Mr. Animesh Das, Mr. Pradyumna Sinha, Advocates, Mr. Lakshmi Kumar Gupta, The Amicus Curiae.
An application for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955, is an original application that must be filed before the district court specified in the Act. The appellate court, while dealing with an appeal against a decree passed in a proceeding under Section 13 of the Act, cannot grant a decree in terms of Section 13B.
Headnote:
HINDU MARRIAGE ACT - DIVORCE BY MUTUAL CONSENT - JURISDICTION - WAITING PERIOD - [SECTION 13B, 19, 21, 3(b)] - THE DIVISION BENCH IS NOT ENTITLED TO TAKE UP AN APPLICATION FOR DIVORCE BY MUTUAL CONSENT FILED DIRECTLY BEFORE SUCH APPELLATE FORUM. SECTION 13B OF THE HMA DOES NOT AUTHORIZE AN APPELLATE COURT DEALING WITH AN APPEAL AGAINST A DECREE PASSED IN A PROCEEDING UNDER SECTION 13 OF THE ACT TO GRANT RELIEF IN TERMS OF SECTION 13B OF THE ACT. AN APPLICATION FOR DIVORCE BY MUTUAL CONSENT UNDER SECTION 13B OF THE ACT MUST BE FILED BEFORE THE DISTRICT COURT AS SPECIFIED IN THE ACT. THE WAITING PERIOD MENTIONED IN SECTION 13B OF THE ACT IS MANDATORY AND NOT DIRECTORY.
Fact of the Case:
Two matrimonial appeals were referred to a Division Bench by a lower court for clarification on whether an appellate court could entertain an application for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 (HMA). The appeals arose from two separate matrimonial suits, one filed by the wife and the other by the husband, both seeking divorce on grounds of irretrievable breakdown of marriage. In both cases, the trial court had dismissed the suits. The parties then filed applications for recording compromise in the respective appeals, seeking a decree of divorce by mutual consent. The Division Bench referred the matter to a larger bench to determine the scope and applicability of Section 13B of the HMA.
Finding of the Court:
The larger bench held that an application for divorce by mutual consent under Section 13B of the HMA is an original application that can only be filed before the district court as specified in the Act. The appellate court, while dealing with an appeal against a decree passed in a proceeding under Section 13 of the Act, cannot grant a decree in terms of Section 13B. The court further held that the waiting period mentioned in Section 13B(2) of the Act, which requires a minimum of six months and a maximum of eighteen months to elapse between the filing of the petition and the passing of the decree, is mandatory and not directory.
Issues: 1. Whether a Division Bench, vested with the determination to take up appeals against the decree arising out of proceedings under the Hindu Marriage Act and the applications in connection with such appeals, is entitled to take up an original application for divorce by mutual consent under Section 13B of the Act filed direct before such appellate forum? 2. Whether the directions given by the Supreme Court in the cases of Shashi Garg, Radha, Mrs. Payal Jindal and Sandhya Rani (supra), should be treated to be valid precedent in terms of Article 141 of the Constitution of India authorizing any other courts to adopt the said procedure? 3. Whether Section 13B of the Act authorizes an appellate court dealing with an appeal against a decree passed in the proceedings under Section 13 of the Act to grant relief in terms of Section 13B of the Act or such application should be filed only before the district court specified in Section 19 of the Act? 4. Whether the waiting period mentioned in Section 13B (2) of the Act is mandatory or directory?
Ratio Decidendi: 1. The language of Section 13B of the HMA, read together with Sections 3(b) and 19 of the Act, indicates that an application for divorce by mutual consent under Section 13B is an original application that must be filed before the district court. 2. The Supreme Court decisions cited by the parties, while granting decrees for divorce by mutual consent in specific cases, did not lay down any binding precedent or declare any law on the issue of whether such applications could be filed in pending appeals. 3. The appellate court, while hearing an appeal from a decree passed in a matrimonial proceeding under Section 13 of the HMA, cannot enlarge its scope to include an application for divorce by mutual consent under Section 13B. 4. The waiting period prescribed under Section 13B(2) of the HMA is mandatory and serves the purpose of providing an opportunity for reconciliation and withdrawal of the petition.
Final Decision: The reference made by the Division Bench was answered in accordance with the findings of the larger bench. The cases were returned to the Division Bench for final adjudication based on the legal principles enunciated in the judgment.
Subhro Kamal Mukherjee, J.
We are called upon to answer a reference on the requisition of a Division Bench in connection with two matrimonial appeals.
Before we enter into the questions referred to before this Bench, we propose to deal with the facts relevant to decide this reference.
On April 28, 2008, Shrimati Rita Bhattacharjee filed Matrimonial Suit No. 298 of 2008 in the court of the learned District Judge, Hooghly. The suit was filed under Section 13(1) (ia) of the Hindu Marriage Act, 1955. Eventually, the suit was transferred to the court of the learned Additional District Judge, Third Court, Hooghly. By judgment and decree dated September 3, 2008, the learned Additional District Judge dismissed the suit ex parte.
Being aggrieved she has come up with this appeal, which has been tendered under F.A.T. No. 419 of 2008. The appeal was filed on September 19, 2008.
In the said appeal, both the wife-appellant and the husband-respondent jointly filed an application for recording compromise. The application was filed on September 23, 2008 under filing number C.A.N. 8852 of 2008. In such application, the parties prayed for disposal of the appeal in terms of the compromise treating the terms of compromise to be part of the decree by granting a decree of divorce by dissolving the marriage of the parties.
Shrimati Swapna Mukherjee (nee Roy), as the plaintiff, on January 22, 1998, instituted a suit for divorce against her husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The suit was filed before the learned District Judge, Alipore, District – South 24Parganas, and was registered as Matrimonial Suit No. 85 of 1998.
The suit was eventually transferred to the court of the learned Additional District Judge, Nineth Court, Alipore, and was re-numbered as Matrimonial Suit No. 76 of 1998. Upon a contested hearing, the learned Additional District Judge, by judgment and decree dated January 30, 2006, dismissed the suit.
Being aggrieved the plaintiff-wife has filed this appeal on March 1, 2006. The appeal has, since, been registered as F.A. No. 116 of 2006.
In the order of reference it was noted that two applications filed in those appeals were heard analogously. Mr. Biswajit Basu, learned advocate appearing for the appellant in F.A. No. 116 of 2006 candidly conceded that as on the date of making the reference, that is, on January 12, 2009, no application in connection with the said appeal was pending before the Division Bench. The application for recording compromise in the said appeal was filed on July 29, 2010, that is, long after the date of requisition. The application was filed under C.A.N. 8678 of 2010.
Mr. Mahendra Prasad Gupta, learned advocate appearing for the appellant and Mr. Animesh Das, learned advocate appearing for the respondent in F.A.T. 419 of 2008, jointly submit that the said application dated September 23, 2008 is for recording compromise in an appeal pending against the decree of dismissal passed in a matrimonial suit.
Mr. Biswajit Basu, learned advocate appearing for the appellant and Mr. Pradyumna Sinha, learned advocate appearing for the respondent in F.A. No. 116 of 2006, jointly submit that the application dated July 29, 2010 is, also, an application for recording compromise in an appeal filed against a decree of dismissal in a matrimonial suit.
It was categorically stated by the learned advocates for the parties that they have never intended nor filed any original petition under Section 13B of the Hindu Marriage Act, 1955 inviting the court to pass decree in terms of Section 13B of the Hindu Marriage Act, 1955.
Nevertheless, the Division Bench made this requisition for reference proceeding on the basis that those applications are, in substance, applications under Section 13B of the Hindu Marriage Act, 1955 and the decree of divorce by mutual consent could only be granted in exercise of the powers vested in Court under Section 13 B of the said Act.
The points for reference are as
