Ab vs Smt. Snigdha Mandal
2023 Latest Caselaw 5823 Cal

04   01.09.                                FAT 26 of 2017
     2023           IA No. CAN 2 of 2017 (Old No. CAN 11820 of 2017)
     Ct. No. 04
                                        Sri Nilotpal Mandal
        Ab                                       Vs.
                                       Smt. Snigdha Mandal.

                                                  ---------------

Ms. Manali Biswas.

... for the appellant.

Mr. Rwitendra Banerjee, Mr. Shibasis Chatterjee, Mr. Sandip Kundu.

... for the respondent.

The earlier Division Bench directed the parties to undergo mediation process to explore the possibility of an amicable settlement to the issues involved in the instant appeal.

The parties have agreed and arrived at the settlement before the mediation, which has been reproduced in the final report of mediation filed by the Mediator in this appeal. It indicates that the parties have agreed to dissolve their marital tie on the following conditions, namely, (1) the appellant shall transfer the house property situated at Sargachi under police station

- Beldanga within the district - Murshidabad in the name of his sons, Bani Shankar Mandal and Mani Shankar Mandal, within three months from date. (2) the appellant shall pay a sum of Rs. 6000/- per month towards the maintenance to the respondent even after dissolution of marital tie till the lifetime of the respondent, (3) the respondent shall have life interest to stay in the house property situated at Sargachi under police station - Beldanga within the district - Murshidabad. It is further indicated therein that upon the transfer of the said property the marital tie of both the parties would be dissolved.

When the matter came up before us, a point was taken by the respondent that the appellant has not

complied the first condition agreed upon before the Mediator. The matter was adjourned to ascertain whether the same has been complied with by the appellant or not. Subsequently, the appellant files a photocopy of the deed executed in favour of his sons in terms of the first condition that the property has been gifted to them, which is kept on record. The parties thereafter insisted to pass a decree of dissolution of marriage in terms of the said settlements.

A piquant situation arose before us as to whether in an appeal of such nature and solely on the basis of the agreement entered into between the parties before the Mediator, the decree for divorce can be granted by this Court. Obviously, this Court was of the view that the court cannot pass a decree for dissolution of marriage de hors the provisions contained in the Hindu Marriage Act (hereinafter referred to as 'said Act') only on the basis of a compromise or an agreement having entered into between the parties. Obviously, the aforesaid impression was gathered because of the introduction of Section 13B of the said Act subsequent to the promulgation of the Hindu Marriage Act, 1955.

Our attention is drawn to a judgment of the Apex Court rendered in case of Amit Kumar vs. Suman Beniwal (Civil Appeal No. 7650 of 2021, decided on 11th December 2021), wherein the Apex Court in unequivocal terms held that the parties can seek for decree of divorce on mutual consent under Section 13B, which does not require any adjudication by the court except to the extent that the parties have agreed to dissolve the marriage out of their free will and having inculcated the sense that the very fabric of marital knot has been totally severed and not susceptible to be restored. Obviously, there is a cooling period provided under Section 13B of the said Act and there has been a diverged opinion in this regard amongst the different courts.

One line of thoughts, which we perceived, is that the said cooling period is mandatory and inflexible. The other line of thoughts, which have gained more importance on a social justice that it would be an unjust hardship on the parties to wait for a period of six months when they have consciously decided to separate themselves from the company of each other and all possibilities of restoring the same have been found futile. In other words, the parties have found that there is an irretrievable breakdown of the marriage and the emotions have been totally shattered incapable of resurrected as all attempts in this regard have failed.

Since the specific provision has been incorporated in this Act, which is obviously a party centric provision and needs only sanction of the court, we feel that it would be appropriate that the parties should resort such remedy. From the conduct of the parties, we do not find that any of them would resile from the agreement entered into before the Mediator, as the appellant has already transferred the property in favour of his sons and, therefore, we feel that there is a least possibility that any of them would take a rebound in this regard. Yet we intend to keep the instant appeal pending even without any sense of retraction from the agreement with a view to give a complete and effective justice to the parties.

Both the parties are, therefore, directed to approach the concerned court with an application under Section 13B of the said Act in furtherance of the agreement that they have decided to dissolve their marriage and if such application is filed within two weeks from date, the concerned court shall take into account of the judgment of the Apex Court in case of Amit Kumar (supra), more particularly, the observations made in paragraph 23 and 27, which runs thus:

"23. It is well settled that a judgment is a precedent for the issue of law that is raised and decided. A judgment is not to be read in the

manner of a statute and construed with pedantic rigidity. In Amardeep Singh v. Harveen Kaur (supra), this Court held that the statutory waiting period of at least six months mentioned in Section 13B(2) of the Hindu Marriage Act was not mandatory but directory and that it would be open to the Court to exercise its discretion to waive the requirement of Section 13B(2), having regard to the facts and circumstances of the case, if there was no possibility of reconciliation between the spouses, and the waiting period would serve no purpose except to prolong their agony.

27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B(2) of the Hindu Marriage Act, the Court would consider the following amongst other factors:-

(i) the length of time for which the parties had been married;

(ii) how long the parties had stayed together as husband and wife;

(iii) the length of time the parties had been staying apart;

(iv) the length of time for which the litigation had been pending;

(v) whether there were any other proceedings between the parties;

(vi) whether there was any possibility of reconciliation;

(vii) whether there were any children born out of the wedlock;

(viii) whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc."

Let this matter be listed on 17th October 2023.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)