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PUNJAB & HARYANA HIGH COURT
Sarojnei Saksena, J.
Krishna Kumari
Versus
Ashwani Kumar
First Appeal from the Order No. 175 of 1995,
Decided On : AUGUST 19, 1996
HINDU MARRIAGE ACT - SECTION 13-B - MUTUAL CONSENT DIVORCE - WAIVER OF SIX-MONTH WAITING PERIOD - INTERPRETATION OF SECTION 13-B(2) - DISCRETION OF APPELLATE COURT - IRRETRIEVABLY BROKEN MARRIAGE - FACTORS CONSIDERED.
Fact of the Case:
Appellant-wife filed an appeal against the dismissal of her divorce petition filed under Section 13 of the Hindu Marriage Act, 1955 (the Act). The parties were married in 1990 and lived together until November 1990. Since then, they have been living separately. The wife alleged cruelty and desertion by the husband. The husband denied the allegations and claimed that the wife was not willing to live with him. The matrimonial court dismissed the wife's petition in 1995.
Finding of the Court:
During the pendency of the appeal, the parties filed a joint petition under Section 13-B of the Act read with Section 151 CPC for converting the proceedings under Section 13 to proceedings under Section 13-B. They alleged that due to temperamental differences, they have separated. The wife had filed a petition under Section 13 of the Act, which was dismissed in 1995. The wife preferred an appeal against that judgment and decree. During the reconciliation proceedings of that appeal, both parties arrived at a compromise, which was annexed as Annexure A-1. The parties have been living separately since November 1990. There is no issue out of this wedlock between the parties. They have settled that the husband would pay a sum of Rs. 25,000/- to the wife in full and final settlement of all her claims against the husband-respondent.
Issues: 1. Whether the six-month waiting period under Section 13-B(2) of the Act can be waived in cases of irretrievably broken marriages? 2. Whether the appellate court has the discretion to grant an immediate decree of divorce by mutual consent without adhering to the six-month waiting period?
Ratio Decidendi: 1. The court held that the provisions of Section 13-B(2) of the Act are directory and do not fetter the powers of the appellate court to grant an instant decree of divorce. The court relied on several precedents where various High Courts had held that the six-month waiting period can be waived in cases where the marriage is irretrievably broken and there is no chance of reconciliation. 2. The court observed that the purpose of the six-month waiting period is to give the parties time for reflection and rethinking. However, in cases where the parties have been litigating for many years and have made futile attempts at reconciliation, the court held that it would be unjust to make them wait for an additional six months. 3. The court also considered the fact that the parties had arrived at a compromise and had agreed to a mutual divorce. The court held that this showed that the parties had given their consent freely and voluntarily and that there was no collusion between them.
Final Decision: The court allowed the petition and granted a decree of divorce on the basis of mutual consent with immediate effect. The court waived the six-month waiting period under Section 13-B(2) of the Act.
Sarojnei Saksena, J.
1. Appellant-wife has filed this appeal Under Section 28 of the Hindu Marriage Act, 1955 (in short, the Act) against the judgment and decree of the matrimonial Court by which her divorce petition filed Under Section 13 of the Act was dismissed on October 18, 1995.
2. The uncontroverted facts are that the appellant was married to the respondent on September 27, 1990, as per Hindu rites at Ambala City. They lived together till November 26, 1990. Since then they are living separately.
3. In the divorce petition, the appellant wife pleaded that even on the day of the marriage the behaviour of the respondent towards her was cruel as he demanded Rs. 50,000/- saying that her father has not spent any money on her marriage. After that demand some amount was given to the respondent by the appellant. Once she was pushed from the stairs, thereby she sustained injuries on her foot, but she was not taken to any doctor. Two day thereafter the respondent and his sister came to the parents of the appellant and insulted them, the appellant is working in the Insurance Company. She joined her duty on November 3, 1990. When she returned home late due to Mandal Commissions riots respondents family fanned the rumour that she had run away. She was forced by the respondent to take a loan for purchasing a scooter for him. She was mercilessly beaten on November 25, 1990. She tried to lodge a report on November 26, 1990, against the respondent and his family members. She was turned out of the matrimonial home on November 26, 1990. She reached her parental home and on December 4, 1990, she lodged a report against her husband and his mother, which was registered by the police on December 28, 1990. Thus, she claimed divorce on the grounds of cruelty and desertion.
4. Husband-respondent in his reply denied all these allegations of cruelty, desertion, demand of dowry etc. According to him, the appellant herself was not ready to live with the respondent and wanted a divorce. She lodged a false report against him and his mother Under Sections 406 and 498-A IPC.
5. Issues were framed by the matrimonial Court. Both the parties adduced their evidence.
6. The matrimonial Court held that the appellant-wife has failed to prove that she was treated with cruelty by the husband-respondent or was deserted by him. Hence her divorce petition was dismissed on October 17, 1995.
7. During the pendency of this appeal, on July 29, 1996, the parties filed a joint petition Under Section 13-B of the Act read with Section 151 CPC for converting the proceedings Under Section 13 of the Act to proceedings Under Section 13-B of the Act. In this petition they have alleged that due to temperamental differences, they have separated. The appellant-wife filed a petition Under Section 13 of the Act, which was dismissed on October 17, 1995. The wife has preferred the aforesaid appeal against that judgment and decree. During the reconciliation proceedings of that appeal, both the parties have arrived at a compromise, which is annexed as Annexure A-1. The parties are living separately since November 26, 1990. There is no issue out of this wedlock between the parties. They have settled that the husband would pay a sum of Rs. 25,000/- to the wife in full and final settlement of all her claims against the husband-respondent.
8. Parties, statements were recorded on that very day to verify whether this petition is submitted by them with their free will and consent, without any force, coercion or undue influence. Both the parties deposed on oath that they were agreed to obtain divorce by mutual consent and they have signed the compromise Annexure A-I, after understanding its contents. Wife admitted that she has received Rs. 25,000/- from her husband in full and final settlement of her claims against him. She also admitted that she has got FIR No. 631 registered against the husband on December 28, 1990, Under Sections 406/498-A IPC. She agreed that she would get this FIR q
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