Back
DELHI HIGH COURT
Kailash Gambhir, J.
Mohin Saili —Appellant No. 1
Sonali Singh —Appellant No. 2
versus
NIL
MAT APP No. 126 of 2010
Decided on 26.11.2010
Counsel for the Parties:
For the Appellants:Ms. Bhakti Pasrija, Advocate.
IMPORTANT POINT
Period of one year of living in separation is a sine qua non to the filing of the petition under Section 13B(1) and its waiver would be forbidden by any cannons of law of interpretation.
Headnote:Hindu Marriage Act, 1955—Section 13(B) and 14—Mutual Consent divorce petition—Application by both parties seeking waiver of one year period—Period of one year of living in separation was a sine qua non to filing of petition—Its waiver was forbidden by any cannoms of law of interpretation—No reason or ground to interfere with order dismissing the application.
Held: The period of one year as living separately in Section 13B(1) is a part of the substantive law for seeking divorce by mutual consent and not a procedural formality that can be done away with. The decree of divorce by mutual consent is a remedy that can be invoked under Section 13B(2) only after fulfilling the conditions set forth in Section 13B(1). Thus the condition of living separately for one year is not directory but mandatory and the plain meaning and requirement of law stated under these provisions should be satisfied before the Court gives any relief. Hence it can not be permissible to mould the requirements of a provision and that too only on the ground of the convenience of the parties.
Now coming to Section 14 of the Act, it would be suffice to say that it provides for the time frame for the presentation of petition and does not lay down an ingredient for granting the decree of divorce. The proviso of Section 14 which provides for the presentation of petition even before the lapse of a period of one year cannot be read into the provision of Section 13B(1) and both are independent of each other.
Therefore the period of one year of living in separation is a sine qua non to the filing of the petition under Section 13B(1) and its waiver would be forbidden by any cannons of law of interpretation. The Court gets the jurisdiction to entertain and decide the petition for divorce by mutual consent only after these ingredients are satisfied. The object of liberalization has to be read only in the manner and framework as provided by the statute. Reason for enacting a law has to be the reason for sustaining the law and it should not destroy the letter and spirit of law.
Hence, in the light of the above discussion, this Court is of the view that the legislative mandate envisaged under Section 13B(1)of the Hindu Marriage Act of providing a period of one year separation before the presentation of the petition to seek divorce by way of mutual consent cannot be waived under proviso of Section 14 of the Hindu Marriage Act as separation of one year is prerequisite for invoking Section 13B(1) of the Hindu Marriage Act and the said statutory period of one year cannot be given any different interpretation so as to dilute its true and correct meaning and any interpretation to the contrary would defeat the very intent of the legislation. (Paras 14 to 17)
Result: Appeal dismissed.
Kailash Gambhir, J.—By this appeal filed under Section 28 of the Hindu Marriage Act, 1955, the appellants seek to challenge the impugned order dated 11.11.2010, passed by the Family Court, whereby the application filed by the appellants under Section 14 of the Hindu Marriage Act to seek waiver of one year period for presenting the joint divorce petition under Section 13(B) of the Hindu Marriage Act was dismissed.
2. The grounds taken by both the appellants in the said application are that the appellant No.1 is working with the Bikanervala Food Pvt. Ltd as an Assistant Unit Manager in Delhi, while appellant No.2 is working with Qatar Airways, Doha, United Arab Emirates (UAE) as a Flight Attendant and both the parties could not live together for a day after solemnization of their marriage on 12.4.2010. It was also stated by them that their marriage was not consummated and both the parties realized that they are totally incompatible, having different mind sets, ambitions and career orientations. It was also stated that the appellant No.2 since is working with an Airlines in Doha, therefore, it is not possible for her to join her husband appellant No.1.
3. The learned Family Court after placing reliance on the judgment of the Apex Court in Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 dismissed the said application moved by the appellants. The learned Family Court held that requirement of Section 13B(1) of the Hindu Marriage Act is that before presentation of the divorce petition, the parties are required to live separately for a period of one year or more. The Court further held that considering the fact that the marriage between the parties was solemnized on 12.4.2010, the statutory period of one year did not come to an end on the day of the presentation of the said petition, therefore, the parties were held not entitled for the grant of exemption of statutory requirement as envisaged under Section 13B (1) of the Hindu Marriage Act. Feeling aggrieved with the said order, both the parties have preferred the present appeal.
4. Ms. Pasrija, learned counsel for the appellants placed reliance on the judgment of this Court in Pooja Gupta and Anr. v. Nil, 118 (2005) DLT 492 and unreported judgment in Sh. Tarun Kumar Vaish v. Ms. Meenakshi Vaish, 119 (2005) DLT 567 decided by this Court on 13.4.2005. Both the judgments are given by the Hon’ble Mr. Justice Mukul Mudgal, as he then was.
5. Taking into consideration the Statement of Objects and Reasons behind the 1996 amendment in the proviso to Section 14 of the Hindu Marriage Act, the Hon’ble Judge in Pooja Gupta’s case (supra) felt that the legislative intent behind the said amendment was expeditious disposal of divorce cases by way of mutual consent. Relevant para of the said judgment is reproduced as under:
“8. The above statement of objects and reasons though made in the context of parity with Section 28 of Special Marriage Act also clearly indicates that the legislative intent was expeditious disposal of divorces by mutual consent. In my view as long as the Court is satisfied as an essential reason for exemption for filing a divorce by mutual consent prior to expiry of one year after the marriage that the plea for mutual consent is not under coercion/intimidation or undue influence and there are no chances of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent, the continuance of such a marriage is bound to cause undue hardship to the spouses. The other relevant considerations which may be considered for granting the exemption from passage of one year before filing a petition for divorce by mutual consent are:
(a) the maturity and the comprehension of the spouses;
(b) absence of coercion/intimidation/undue influence;
(c) the duration of the marriage sought to be dissolved;
(d) absence of any possibility of reconciliation;
(e) lack of frivolity;
(f) lack of misrepresentation or concealment;
(g) the age o
