Swapnil Verma And Another ... vs Principal Judge Family Court ...
2015 Latest Caselaw 1296 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No.24
 

 
Writ Petition No. 4019 of 2015 (M/S)
 

 
Swapnil Verma and another 		..........	Petitioners
 
Versus
 
Principal Judge, Family Court, 
 
Lucknow					...........	Opposite party
 

 
*******
 
Hon'ble Dr. Devendra Kumar Arora, J.

Heard learned counsel for the petitioners and perused the record.

According to the petitioners, their marriage was solemnized on 17.6.2010 as per Hindu rites and rituals at Madhuban Marriage Hall Mohan Road, Lucknow and after marriage, they lived together for sometime and from the wedlock, a baby, namely, Aaradhya, was born, who is at present 5 years old. In the year 2012, due to some quarrel, petitioner No.2-Anjali Verma lodged an FIR against the petitioner No.1.-Swapnil Verma, which was registered as Case Crime No. 302/12 under Sections 498 IPC and 3/4 of the Dowry Prohibition Act at police station Sikanderpur district Ballia and since then, petitioners are living separately.

It has been stated by the petitioners that since they did not cohabitated so long and further it is impossible for them to live together, therefore, they decided to enter into compromise to take divorce by mutual consent and filed a petition before the competent court. In these backgrounds, on 2.7.2015, petitioners have filed a suit for mutual divorce under Section 13 (B) of the Hindu Marriage Act, 1955 before the Principal Judge, Family Court, Lucknow, which was registered as Suit No. 1553 of 2012 but the opposite party-Principal Judge, Family Court, Lucknow, has fixed the suit for 3.1.2016. Therefore, the petitioner is constrained to approach this court by filing the present writ petition, seeking a writ in the nature of mandamus directing the opposite party to conclude the suit No. 1553 of 2012 for mutual divorce filed under Section 13 (B) of Hindu Marriage Act, 1955 : Swapnil Verma and Anjali Verma, expeditiously.

Submission of the learned counsel for the petitioners is that there is no chance of conciliation between the petitioners and as such, it will be justified to issue decree of divorce expeditiously preferably in case of similarly aged persons like petitioners but the opposite party has fixed the suit in the month of January, 2016. His submission is that since the relationship of the petitioners are not recoverable, therefore, a decree of mutual divorce ought to have been passed by the opposite party on waiving off the statutory period as provided under Section 13 (B) of the Act but the opposite party has fixed the suit for hearing on 3.1.2016.

To strengthen his arguments, learned counsel for the petitioner has placed reliance upon the cases reported in 1995 Supp. (4) SCC 411 : Payal Jindal (Mrs) Vs. A.K. Jindal; AIR 1999 Andhra Pradesh 91 : In Re: Grandhi Venkata Chitti Abbai and another; AIR 2005 Madhya Pradesh 106 : Dineshkumar Shukla Vs. Smt. Neeta; AIR 2005 Delhi 365 : Ms. Anita Sharma and another Vs. Nil

I have heard learned counsel for the petitioner and perused the record.

A short point for decision in this writ petition is whether this Court under Article 227 of the Constitution of India has power to direct the Principal Judge, Family Court, Lucknow to decide Suit No. 1553 of 2012, which has been filed by the petitioners for mutual divorce under Section 13 (B) of the Hindu Marriage Act, by waiving off the statutory period as provided under Section 13 (B) of the Act.

At this juncture, reference may be made to the provisions of Section 13B of the Act and the same is reproduced hereinbelow :

"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, 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."

A bare perusal of the provisions of the aforesaid section makes it clear that sub-section (1) of section 13B is the enabling section for presenting a petition for dissolution of a marriage by a decree of divorce by mutual consent. One of the grounds provided is that the parties should be living separately for a period of one year or more and that they have not been able to live together. Sub-section (2) of Section 13B, however, provides the procedural steps that are required to be taken once the petition for mutual divorce has been filed and six months have expired from the date of presentation of the petition before the Court. From further perusal of the aforesaid provision of the Act, it also comes out that on a motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in Sub-section (1) and not later than 18 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, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

From the analysis of the Section 13-B, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be party to the joint motion under sub-section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both.

In Anil Kumar Jain v. Maya Jain, reported in (2009)10 SCC 415, the Supreme Court has held that it has power under Article 142 of the Constitution of India to convert proceedings under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and grant a decree for mutual divorce without waiting for the statutory period of six months, by applying the doctrine of irretrievable break-down of marriage. However, the Apex Court has categorically held, in no uncertain terms, that except for the Supreme Court, no High Court or Civil Court has the power to grant relief by invoking the doctrine of irretrievable break-down of marriage. This is what the Supreme Court has held:

"28. It may, however, be indicated that in some of the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution, this question had arisen and it was held in most of the cases that despite the fact that the marriage had broken down irretrievably, the same was not a ground for granting a decree of divorce either under Section 13 or Section 13-B of the Hindu Marriage Act, 1955.

29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13 and 13-B of the Hindu Marriage Act, 1955.

30. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other Courts can exercise such powers. The other Courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties."

(emphasis supplied)

The above principles of law are reiterated by the Supreme Court in Manish Goel v. Rohini Goel, reported in (2010) 4 SCC 393, in the following terms:

"12. In Anjana Kishore v. Puneet Kishore, this Court while allowing a transfer petition directed the Court concerned to decide the case of divorce by mutual consent, ignoring the statutory requirement of moving the motion after expiry of the period of six months under Section 13-B(2) of the Act. In Anil Kumar Jain, this Court held that an order of waiving the statutory requirements can be passed only by this Court in exercise of its powers under Article 142 of the Constitution. The said power is not vested with any other court.

13. However, we have also noticed various judgments of this Court taking a contrary view to the effect that in case the legal ground for grant of divorce is missing, exercising such power tantamounts to legislation and thus transgression of the powers of the legislature, which is not permissible in law (vide Chetan Dass v. Kamla Devi and Vishnu Dutt Sharma v. Manju Sharma).

14. Generally, no Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (Vide State of Punjab v. Renuka Singla, State of U.P. v. Harish Chandra, Union of India v. Kirloskar Pneumatic, University of Allahabad v. Dr. Anand Prakash Mishra and Karnataka SRTS v. Ashrafulla Khan)."

The ratio of the judgments in Anil Kumar Jain v. Maya Jain (supra) and Manish Goel v. Rohini Goel (supra), is that the order of waiving the statutory requirements can only be passed by the Supreme Court in exercise of its power under Article 142 of the Constitution of India and that such power is not vested in any other Court.

In the background of the above legal position propounded by the Supreme Court, I may now advert to the grounds pleaded by the petitioners, in support of their prayers to curtail the statutory period of six months under Section 13-B(2) of the Act, and to direct that the petition for divorce by mutual consent be disposed of, expeditiously. It has been averred in the petition, and submitted by learned counsel for the petitioners that the parties have not been cohabiting with each other or performing their marital obligations since the year 2012. As the marriage has broken down irretrievably and both the petitioners have mutually agreed that it be dissolved, the waiting period of six months ought to be curtailed. In this regard, reliance has been placed upon the judgments of the Supreme Court and this Court, quoted hereinabove.

It is clear from the judgments of the Supreme Court reproduced herein above that in curtailing the statutory period of six months and granting a decree of divorce by mutual consent, the Supreme Court has exercised power under Article 142 of the Constitution of India. This power is not available to any other Court in the land, including this Court. In Anil Kumar Jain v. Maya Jain (supra), the Supreme Court has clearly held, in no uncertain terms, that the doctrine of irretrievable breakdown of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution of India. Neither can the High Court, nor the Civil Court, can pass orders before the period prescribed under the relevant provisions of the Act, or on grounds not provided for in Section 13 and 13-B of the statute. This principle of law has been reiterated by the Supreme Court in Manish Goel v. Rohini Goel (supra).

For the reasons aforesaid, I am of the considered view that the grievance of the petitioners for truncating the statutory waiting period of six months envisaged under Section 13-B(2) of the Act, for the reason that their marriage has broken down irretrievably, is, therefore, not within the scope of adjudication of this Court, considering that such power can be exercised only by the Apex Court under Article 142 of the Constitution of India.

So far as the judgments, which have been relied upon by the learned counsel for the petitioners, the same are of no avail to the petitioners in the facts and circumstances of the present case.

The writ petition is, therefore, dismissed. There shall be no order as to costs.

Order Date : 16.7.2015

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