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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
SANGEET LODHA, P.K. LOHRA, JJ.
Mridul Panwar S/o Manoj Panwar - Appellant
Versus
Smt. Priyanka Fithani W/o Shri Mridul Panwar D/o Shri Ramesh Fithani - Respondent
D.B. Civil Misc. Appeal No. 1603 of 2019
Decided On : 27-08-2019
Hindu Marriage Act, 1955 – Section 13B(2) – Family Courts Act, 1984 – Section 19 – Failure to seek nod – non-consummation of marriage – Facts of the case are that appellant and respondent entered into matrimony at Jodhpur on as per Hindu rites & rituals. Since marriage, both the spouses realized incompatibility in their liaison and within no time acrimony between them reached to its pinnacle – Sort of situation resulted in separation of the spouses without consummation of marriage – Respondent wife, therefore, shifted to her parental house after few days of marriage – When the spouses pondered over their turbulent and unmatched martial life, both objectively decided to call it a day – Finally, at the behest of both the parties, a joint petition under Section 13B of the Act for seeking dissolution of marriage by mutual consent is filed before the learned trial Court – Along with the petition, an application is also filed to dispense with transitional period of six months precisely by citing the reason that since marriage both are living separately and there was no cohabitation between them –Held, In an oft-quoted passage Lord Campbell said: No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience – It is the duty of Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered – For ascertaining the real intention of the Legislature’, points out the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow there from; and above all, whether the object of the legislation will be defeated or furthered –Appeal is allowed.
JUDGMENT :
P.K. LOHRA, J.
Appellant’s failure to seek nod of Family Court No.1, Jodhpur (for brevity ‘learned trial Court’) for waiver of six months’ transitional period, envisaged under Section 13B(2) of the Hindu Marriage Act, 1955 (for short, ‘Act’), has led to the instant appeal under Section 19 of the Family Courts Act, 1984.
2. Succinctly stated, the facts of the case are that appellant and respondent entered into matrimony at Jodhpur on 10th of September, 2017 as per Hindu rites & rituals. Since marriage, both the spouses realized incompatibility in their liaison and within no time acrimony between them reached to its pinnacle. This sort of situation resulted in separation of the spouses without consummation of marriage. The respondent wife, therefore, shifted to her parental house after few days of marriage. When the spouses pondered over their turbulent and unmatched martial life, both objectively decided to call it a day. Finally, at the behest of both the parties, a joint petition under Section 13B of the Act for seeking dissolution of marriage by mutual consent is filed before the learned trial Court on 10th of April, 2019. Alongwith the petition, an application is also filed to dispense with transitional period of six months precisely by citing the reason that since marriage both are living separately and there was no cohabitation between them. The learned trial Court, by its order dated 26th of April, 2019, declined prayer of the spouses. Therefore, impugning the order aforesaid, appellant has laid this appeal.
3. It is contended by learned counsel for the appellant that a very significant fact of both the spouses not living together since marriage has completely escaped notice of the learned trial Court while declining waiver of six months cooling period under Section 13B(2) of the Act. Learned counsel would urge that in the peculiar facts and circumstances of the case, learned trial Court ought to have examined prayer for waiver of cooling period objectively by keeping interest of both the spouses paramount. Learned counsel further submits that non-consummation of marriage and other facts germane to the matter are completely eschewed by the learned trial Court while passing the impugned order, therefore, same is per se vulnerable.
4. In support of his arguments, learned counsel for the appellant has placed reliance on following precedents:
- Siddarth Motwani Vs. Smt. Aastha Wadhwa [2019 (3) WLN 213 (Raj.)
- Ishan Khandelwal Vs. Smt. Nikita Khandelwal [2019 (2) WLC (Raj.) UC 27]
- Deepa Sahu (Smt.) Vs. Harshvardhan [2019 (1) CJ (Civ.)(Raj.) 316]
- Aditi Wadhera Vs. Vivek Kumar Wadhera [2016 (Suppl.) Civil Court Cases 606 (SC) : [(2017) 11 SCC 241]
- Anju Garg Vs. Vikas Garg [2015 (2) Civil Court Cases 786 (SC)]
- Manish Goel Vs. Rohini Goel [2010 (1) WLC (SC) Civil 655]: [(2010) 4 SCC 393]
- Neeti Malviya Vs. Rakesh Malviya [2010 (2) WLC (SC) Civil 192 : [(2010) 6 SCC 413].
Learned counsel for the respondent-wife has fully concurred with the arguments of the appellant.
5. As per basic tenets of Hindu Mythology & Culture, marriage is a sacred ceremony. It is a bond of companionship for life between spouses. Yudhishtira, while answering to a question of Yaksha, said “Bhaaryaa Mitram Grihesatah”, i.e., the friend of householder is his spouse. According to Hindus, this friendship is the understanding, the promise and the commitment that unites a man and a woman. Under the Hindu scriptures, aim of a marriage is not merely physical pleasure but also spiritual advancement and fulfilment of duties. If we examine Hindu philosophy of marriage, Vedas & Puranas, then, it would reveal that concept of divorce is absolutely alien. With the advent of time, Hindu philosophy and culture transformed to match the pace of modern day life by shunning the age old Mythological and Cultural injunctions.
6. Then came a comprehensive codified law governing the province o
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