Smt. Srabani Adhikari vs Vikas Adhikari
2012 Latest Caselaw 3432 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 27
 

 
Case :- FIRST APPEAL No. - 46 of 2008
 

 
Petitioner :- Smt. Srabani Adhikari
 
Respondent :- Vikas Adhikari
 
Petitioner Counsel :- Shailesh Kumar
 
Respondent Counsel :- B.D. Misra,B.D.Misra
 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble Vishnu Chandra Gupta,J.

1. Heard learned counsel for the appellant and learned counsel for the respondents.

2. The present appeal has been preferred under Section 19 of the Hindu Marriage Act against the impugned judgement and decree dated 13.2.2008 passed in Regular Suit No. 1236 of 2007. An application under Section 13 B of the Hindu Marriage Act was moved by the appellant before the Family Court Lucknow. Affidavits were filed by the appellant and the respondents with regard to mutual consent for divorce. It appears that after receipt of application, Additional Judge Family Court after hearing counsel for the parties had passed the impugned judgement and order dated 13.2.2003 without following the procedure contained in Section 13 B of the Hindu Marriage Act. For convenience, Section 13 B of the Hindu Marriage Act is reproduced as under:-

"13B. Divorce by mutual consent.

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, 1976 , (68 of 1976) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]"

3. A plain reading of aforesaid provision reveals that after receipt of application under Section 13 B of the Act, the Family Court shall fix a date not earlier than six months but not later than eighteen months, if the petition is not withdrawn in the meantime. Thereafter, being satisfied, after hearing the parties and after making such inquiry as it thinks fit that marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

4. In the present case, admittedly, the procedure prescribed under Section 13 B of the Hindu Marriage Act has not been followed. Petitioner's counsel further submits that being illiterate lady she was not aware about the application, moved before the court. However, he submits that there is no joint application was moved by the parties whereby signature of appellant and the respondents duly verified by the lawyers. Certain other procedural illegality or irregularity has been pointed out with the allegation of commission of fraud. Even if, no fraud was committed but fact remains that the procedure prescribed under Section 13 B of the Hindu Marriage Act was not followed.

5. A plain reading of the impugned judgement reveals that the application was moved under Section 13 B of the Hindu Marriage Act. The family court should have applied its mind to the contents of application as well as provisions contained in Section 13 B of the Hindu Marriage Act. It is well settled proposition of law that procedure prescribed by the Act or any statutory provision must be followed by the Courts while adjudicating a controversy. Non-compliance of procedure provided by legislature shall vitiate the judgement and decree passed by the courts.

6. Safeguard provided by Section 13 B of the Hindu Marriage Act has got its own object and reasons. The purpose behind Clause 2 of Section 13 B of the Act is to give reasonable time to the husband and wife both to think over their drastic steps with regard to separation from the matrimonial life. The period of six months provided under Section 13 B of the Hindu Marriage Act also gives an opportunity to the parties to give second look to their decision taken with regard to separation and divorce. Divorce in matrimonial is the last recourse and before granting a decree of divorce it shall always be incumbent upon the Family Court not only to provide reasonable opportunity to give a second look with regard to decision taken by the parties for mutual consent but also as far as possible take necessary steps to save matrimonial bond by dialogue or through mediation. Divorce become more serious event in a persons life when the married couple has got children and whose future and career rests on the shoulder of their parents, who are fighting with each other and proceeding for divorce without any effort for amicable settlement. Legislature to their wisdom has amended CPC and introduced Section 89 which is reproduce as under:-

" [89. Settlement of disputes outside the Court.

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-

 (a) arbitration;

 (b) conciliation

 (c) judicial settlement including settlement through Lok Adalat; or

 (d) mediation.

 (2) Where a dispute had been referred-

 (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

 (b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

 (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

 (d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.]

7. In compliance of Section 89 of the CPC it shall be necessary for the court to apply mind with regard to settlement of dispute outside the court. Out of the different procedure provided by Section 89 of the CPC, the conciliation, mediation or lok adalat are the common procedure which are being adopted by court to settle the dispute outside the court. In a suit filed for maintenance under the Hindu Marriage Act or any other law time being enforced it shall always be incumbent upon the trial court or family court to adopt the recourse provided under Section 89 of the CPC before granting a decree of the suit filed for divorce or dissolution of marriage. In the present case, the family court without following the procedure provided under Section 13 B of the Act as well as without applying mind in terms of Section 89 of the CPC had decreed the suit.

8. Apart from Section 89 of the CPC, "The Family Courts Act, 1984 as well as rules framed thereunder namely U.P. Family Courts Rules, 1995 contains the procedure with regard to conciliation. While adjudicating the controversy with regard to divorce even with regard to maintenance it shall be obligatory on the part of family court to make all efforts with regard to conciliation or mediation and convince the parties for settlement of their dispute amicably. Breakage of family neither fulfill the social requirement nor it is just and fair in social interest.

9. In view of above, appeal deserves to be allowed. Accordingly, impugned judgement and decree dated 13.2.2008 is set aside. The matter is remitted back to the family court concerned. The family court shall decide the case afresh in accordance with law keeping in view the observation made hereinabove expeditiously, say within a period of six months.

10. Appeal is allowed. No order as to costs.

[Justice Devi Prasad Singh]

[Justice Vishnu Chandra Gupta]

Order Date :- 8.8.2012

Madhu