Mukesh Ashok Gundecha & Anr. vs Govt. Of Nct Of Delhi
2010 Latest Caselaw 30 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CM (MAIN) NO.10/2010

                   Date of Decision: January 07, 2010

      MUKESH ASHOK GUNDECHA & ANR. .....Petitioners
              Through: Mr. T.P.S. Kang, Adv.
                       with Ms. Prerna Mehta,
                       Mr. M.M. Alam, Advocates.

                               versus

      GOVT. OF NCT OF DELHI         ..... Respondent
                Through: Mr. Shoaib Haider for
                         Mr. N. Waziri, Standing
                         Counsel.
      %
      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?

     (3) Whether the judgment should be reported
         in the Digest ?

                      JUDGMENT

ARUNA SURESH, J. (Oral)

1. Impugned in this petition is the order of the

Additional District Judge, North-West dated

05.12.2009 whereby the application of the

petitioners seeking waiver of six months period for

filing petition under Section 13 (B) (2) of Hindu

Marriage Act (hereinafter referred to as „Act‟) was

dismissed.

2. Petitioners were married according to Hindu rites on

20.01.2003 at Maharastra. A female child named

Tanya was born from the wedlock of the parties on

25.09.2006. However, parties could not continue to

live together because of temperamental disputes

and started living separately since 18.05.2007. As

marriage had irretrievably broke down, parties

decided to dissolve their marriage by way of decree

for divorce by mutual consent on terms and

conditions contained in para 5 of the impugned

order.

3. Petitioners filed a petition under Section 13 (B) (1)

of the Act. The said petition was allowed vide order

dated 16.11.2009. Subsequently, Petitioners filed

application seeking waiver of six months period for

filing Second Motion Petition under Section 13 (b)

(2) of the Act on 04.12.2009. The said application

was dismissed by the trial Court on 05.12.2009

while relying upon 'Anil Kumar Jain vs. Maya

Jain' II (2009) DMC 449 SC'.

4. I find no infirmity or illegality in the impugned order

of the trial court dated 05.12.2009.

5. Way back in the year 1990 the Apex Court in „Smt.

Sureshta Devi Vs. Om Prakash, (1991) 2 SCC

25', has observed that the statutory period of six

months required to be complied with before filing a

petition under the said provision is a mandate in

nature. The Supreme Court has observed:-

"13. From the analysis of the section, 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 a 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. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub- section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties. ... if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court

shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent."

6. Since thereafter, Sureshta Devi's case is being

followed by the Supreme Court in catena of

judgments.

7. In Anil Kumar Jain's case (supra) also Sureshta

Devi's case was considered by the Apex Court.

While doing so, it was observed that it was only the

Supreme Court who in exercise of its power under

Article 142 of the Constitution of India can grant

relief to the parties without waiting for the statutory

period of six months stipulated under Section 13 (B)

of the Act.

8. In 'Asmita Roy Choudhary vs. Ram Babu', CM

(M) No.1299 of 2009', decided by me on 13th

November, 2009, similar question was agitated and

waiver of six months period was sought for filing a

petition under Section 13 (B) (2) of the Act. While

dismissing the petition, it was observed:-

".....Thus, it is clear that petition for divorce by mutual consent has to be considered and treated on a different footing and the conditions precedent prescribed under these Sections must be satisfied before presentation of a petition seeking divorce under the said Section. No undue hardship or inconvenience or prejudice is caused to the parties by complying of the provisions contained in Section 13(B)(2) of the Act. The validity and constitutionality of the provisions contained in this Section has been repeatedly upheld by the Supreme Court in various cases.

The Court while interpreting the statutory provisions cannot add or subtract the words in the Section nor would it give meaning to the language of the Section, other, than what is intended on the plain reading of the provisions. Plain reading of sub- Section (2) of Section 13(B) of the Act makes it clear that parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than eighteen months after the

said date. This provision has been incorporated with a view to provide time to the Court to satisfy the genuineness of the claims in the petition, find out whether the consent was not obtained by force, fraud or undue influence. For that purpose, the Court is at liberty to make enquiry and may record the statements of the parties or hear them. If the Court is satisfied that the consent is voluntary, without any force, fraud or undue influence and that the parties have mutually agreed that the marriage should be dissolved, it must pass a decree for divorce under Section 13(B)(2) of the Act."

9. Hence, I find no merits in the petition, the same is

accordingly dismissed.

(ARUNA SURESH) JUDGE

JNAUARY 07, 2010 vk