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IN THE HIGH COURT OF ALLAHABAD
Shashi Kant Gupta, Pradeep Kumar Srivastava, JJ.
Arpit Garg - Appellant
Vs.
Ayushi Jaiswal - Respondent
First Appeal No. 115 of 2019
Decided On : 06-05-2019
Hindu Marriage Act,1955 – Section 13B – Application jointly filed by parties for mutual divorc has been rejected and divorce petition returned on ground been filed within less than period of one year of separation of parties – Challenged – Held – Section 13B cannot be read along with Section 14 of the Act and the proviso to section 14 by no stretch of imagination will be applicable in the matters of mutual divorce by consent – Period of separation of one year as provided under Section 13B is mandatory for dissolving the marriage by mutual consent - Period prescribed under Section 13-B(1) of the Act is mandatory and cannot be waived - Petition filed within less than one year of marriage on the ground of mutual consent is not at all maintainable – Appeal dismissed. (Para 25, 29)
Facts of the Case:
Application jointly filed by parties for mutual divorce has been rejected and divorce petition returned on ground been filed within less than period of one year of separation of parties – Challenged.
Finding of Court:
Section 13B cannot be read along with Section 14 of the Act and the proviso to section 14 by no stretch of imagination will be applicable in the matters of mutual divorce by consent – Period of separation of one year as provided under Section 13B is mandatory for dissolving the marriage by mutual consent - Period prescribed under Section 13-B(1) of the Act is mandatory and cannot be waived - Petition filed within less than one year of marriage on the ground of mutual consent is not at all maintainable.
Result: Appeal dismissed
Key Points: - The period of one year of separation is mandatory for divorce by mutual consent under Section 13B(1) and cannot be waived (!) (!) . - The proviso to Section 14 of the Act does not apply to mutual divorce proceedings under Section 13B (!) (!) . - The one-year period prescribed under Section 13B is mandatory and cannot be waived by the court, unlike the provision under Section 13(1) (!) (!) .
JUDGMENT :
Shashi Kant Gupta, J.
This appeal has been filed against the order dated 23.01.2019 passed by the Principal Judge, Family Court, Allahabad in Misc. Case No. 01 of 2019 (Smt. Ayushi Jaiswal v. Arpit Garg) whereby the application jointly filed by the parties under Section 13B of the Hindu Marriage Act for mutual divorce has been rejected and the divorce petition was returned on the ground as having been filed within less than a period of one year of separation of the parties.
2. A perusal of the record shows that the marriage was solemnized on 09.07.2018 between the parties but soon thereafter, their marital relations got strained as a result whereof they entered into a compromise on 20.12.2018 to seek a mutual divorce under Section 13B of the Hindu Marriage Act, 1955 (in short "the Act"). Both the parties are living separately since 12.10.2018. On 21.12.2018, a joint application under Section 13 B was filed by the parties before the court below for seeking divorce on the basis of mutual consent.
3. It is relevant to mention here that an application under Section 14 of Hindu Marriage Act has also been filed by the respondent in the aforesaid divorce petition to grant leave to present the divorce petition with mutual consent before the expiration of one year since the date of the marriage and the said application was registered as Misc. Case No. 01 of 2019. The divorce petition filed under section 13B of the Act was rejected by order dated 23.01.2019 by the Court below as premature and the divorce petition was returned back holding that the period as prescribed under Section 13-B(1) of the Act can not be waived under the proviso to Section 14 of the Act. Hence the present appeal.
4. Learned counsel for the appellant has contended that the impugned order is based on a complete misreading of the case and misconception of the legal position relevant to the matter. It was further contended that the Court below has misinterpreted and misconstrued the provisions of Section 13-B as well as Section 14 of the Hindu Marriage Act. It was further submitted that the period of one year since the date of separation of the parties to the marriage can be waived by the Court under the proviso to Section 14 of the Act for the purpose of filing a petition under Section 13-B of the Act. When it appears that there are no chances of living together of husband and wife and their differences can not be resolved and the present case is such a case in which there are no chances of reconciliation between the parties and by rejecting the said application, the appellant and respondent have been virtually directed to suffer mental trauma and agony. He further submitted that both the parties are living separately since 12.10.2018.
5. In support of his contention, learned counsel for the petitioner has placed reliance upon the decision of the Apex Court in the case of Amardeep Singh v. Harveen Kaur, AIR, Supreme Court 4417 and the decision of the Division Bench of the Delhi High Court in the case of Sankalp Singh v. Prarthana Chandra decided in FAO No. 312 of 2012 on dated 01.03.2013.
6. Heard learned counsel for the appellant and perused the record as well as provisions of the Hindu Marriage Act particularly Sections 13, 13-B and 14 of the Act.
7. Before we may proceed further in the matter, it would be expedient and useful to refer to Sections 13-B and 14 of the Hindu Marriage Act which are relevant for the purpose of deciding the present appeal are quoted herein below:-
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