Delhi High Court
Ms. Urvashi Sibal & Anr. vs Govt. Of Nct Of Delhi on 7 January, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (MAIN) NO.6/2010
Date of Decision: January 07, 2010
MS. URVASHI SIBAL & ANR. .....Petitioners
Through: Ms. Meenakshi Lekhi, Adv.
with Ms. Prerna Mehta, Adv.,
Mr. V.Vats, Adv.
versus
GOVT. OF NCT OF DELHI ..... Respondent
Through: Mr. Nand Kishore Jha, Adv.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
1. Parties to the petition were married on 17.02.2009.
Due to temperamental difference and irretrievable
broke down of marriage, parties started living
separately since 17.03.2009. Since one year had
not elapsed from the date of separation, an
application under Section 14 of the Hindu Marriage
Act (hereinafter referred to as „Act‟) was filed for
waiver of one year statutory period for divorce by
mutual consent under Section 13 (B) of the Act.
The said application was dismissed by the trial court
vide impugned order dated 18.11.2009 in view of
'Anil Kumar Jain vs. Maya Jain' II (2009) DMC
449 SC'.
2. In Anil Kumar Jain's case (supra), the Supreme
Court was pleased to hold that it was only the
Supreme Court in exercise of its extraordinary
powers under Article 142 of the Constitution of
India, who could waive the statutory period and
pass decree for divorce by mutual consent under
Section 13 (B) (2) of the Act. It was further held
that neither the Civil Court nor even the High Court
can pass an order before the expiry of period
prescribed under the relevant provision of the Act or
on grounds not provided under Section 13 and 13-B
of the Act. Therefore, the Supreme Court did not
confine itself to the question of waiver of six months
period as is required to be observed by the parties
after a petition under Section 13 (B) (1) of the Act is
filed and allowed, before filing a petition under
Section 13 (B) (2) of the Act. It discussed the power
of this Court as well as of the Civil Court and its own
court to waive the statutory period prescribed under
Section 13 (B) or any other relevant provision of the
Act or on grounds not provided under Section 13
and 13 (B) of the Act.
3. It is submitted by Ms. Meenakshi Lekhi, learned
counsel for the Petitioners that this is a case where
parties cannot reconcile their dispute as marriage is
irretrievable broke down and therefore, the Court is
within its right to invoke proviso to Section 14 of the
Act and permit the parties to file a petition under
Section 13 (B) of the Act before expiry of the
statutory period of one year. These submissions are
devoid of merits.
4. In „Smt. Sureshta Devi Vs. Om Prakash, (1991)
2 SCC 25' the Supreme Court defined "living
separately" appearing in Section 13 (B) (1) of the
Act in the following manner:-
"9. The „living separately‟ for a
period of one year should be
immediately preceding the
presentation of the petition. It is
necessary that immediately
preceding the presentation of
petition, the parties must have
been living separately. The
expression „living separately‟,
connotes to our mind not living like
husband and wife. It has no
reference to the place of living. The
parties may live under the same
roof by force of circumstances, and
yet they may not be living as
husband and wife. The parties may
be living in different houses and yet
they could live as husband and
wife. What seems to be necessary
is that they have no desire to
perform marital obligations and
with that mental attitude they have
been living separately for a period
of one year immediately preceding
the presentation of the petition.
The second requirement that they
„have not been able to live
together‟ seems to indicate the
concept of broken down marriage
and it would not be possible to
reconcile themselves. The third
requirement is that they have
mutually agreed that the marriage
should be dissolved."
5. The Supreme Court further proceeded to analysis
the requirement of Section 13 (B) (2) of the Act and
also if the court had the power of condone the
statutory period of six months to be observed by
the parties before filing a petition under Section 13
(B) (2) of the Act. The said judgment has been
followed in Anil Kumar Jain's case (supra).
6. In 'Nand Kishore vs. Suman', Matrimonial
Appeal No.134/2009 decided by me on 15th
December, 2009, while dealing with a similar
question, reliance was placed on „Smt. Sureshta
Devi's case (supra). I further distinguished the
provisions contained in Section 13 (B) (1) and
Section 14 of the Act for waiving the statutory
period of one year before filing a petition under
Section 13 or 13 (B) of the Act, as the case may be.
It was observed:-
"12. It is noted that requirement
under Section 13-B (1) of the Act is
separation for a period of one year or
more beside others to file a petition.
Whereas under Section 14 of the Act,
Court has the power to condone the
statutory period of one year, required
for filing a petition under Section 13 of
the Act or any other provision
contained in the said Act, from the
date of the marriage. Therefore,
under no circumstances, Section 14 of
the Act can be invoked in the
proceedings initiated under Section
13-B of the Act."
7. Thus, it is clear that the statutory period of one year
required to be maintained by the parties for filing a
petition under Section 13 (B) of the Act are
independent of the provisions contained in Section
14 of the Act. Section 13 (B) when read is a
complete Code in itself and, therefore, for filing a
petition under Section 13 (B) of the Act, the parties
cannot be allowed to invoke Section 14 seeking
waiver of the statutory period of one year from
separation for filing a petition under Section 13 (B)
of the Act.
8. Hence, I find no infirmity or illegality in the
impugned order of the trial court, the petition is
accordingly dismissed.
(ARUNA SURESH)
JUDGE
JNAUARY 07, 2010
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