Ritu Preti Kapoor vs Vineet Perti
2011 Latest Caselaw 3481 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Judgment delivered on: 22.07.2011


                          MAT. APP. No. 48/2011


Ritu Preti Kapoor                             ......Appellant No.1

                     Through: Mr. Rajeev Agarwal, Advocate
                              along with Appellant No.1            in
                              person.


                               AND

Vineet Perti                             ...... Appellant No.2

                     Through: Mr. Ashok Kumar Singh, Advocate
                              along with Appellant No.2 in
                              person.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.

Whether the Reporters of local papers may Yes be allowed to see the judgment?

2. To be referred to Reporter or not?               Yes


3. Whether the judgment should be reported           Yes
    in the Digest?


KAILASH GAMBHIR, J.Oral:

1. By this appeal filed under Section 28 of the Hindu

Marriage Act, 1955 read with Section 151 CPC, the appellants

seek to challenge the order dated 2nd April, 2011 passed by the

court of learned Addl.District Judge, Karkardooma Court, Delhi

in HMA Case No.364/2009 thereby dismissing the second

motion petition filed by the parties under section 13B(2) of the

HM Act..

2. The background of facts briefly is that the

appellants filed the petition for divorce by mutual consent

under section 13B of the HM Act (first motion), on 11.07.2009

which was allowed vide judgment dated 3.09.2009 subject to

the conditions mutually agreed between the parties. The

second motion under section 13B(2) of the Hindu Marriage Act

had already been filed jointly by the parties on 11.07.2009 and

was granted petition no. 364/2009 which was listed on several

dates but due to unavoidable circumstances both the parties

could not appear together for the recording of the joint

statement. However on 2.04.2011, when both the parties

appeared together for recording their joint statement , vide

order dated 2.04.2011 the Ld. Court dismissed the second

motion on the ground of limitation as being beyond the

statutory period of 18 months. Feeling aggrieved with the

same, the appellants have preferred the present appeal.

3. Learned counsel for the appellants submits that

both the parties had filed the both motions under Section

13B(1) & (2) at the same time but the said motions were being

taken up separately by the learned ADJ. Counsel also submits

that in fact the first motion was granted by the court on 3rd

September, 2009 and the second motion was kept pending so

as to give finality to the terms and conditions agreed by the

parties in their first motion petition. Counsel further submits

that no upper limit under Section 13B(2) has been laid down

for filing second motion petition as a period of 18 months

mentioned in Section 13B(2) is an upper limit for the

withdrawal of the first motion petition. In support of his

arguments, appellants placed reliance of the judgment of this

Court in Pankaj Parmar v. Shikha Parmar 119 (2005) DLT 278.

4. I have heard learned counsel for the parties.

5. Section 13B of The Hindu Marriage Act envisages

divorce by mutual consent subject to the fulfillment of

conditions as laid down under clause (1)of the said section.

Section 13B(2) however states that the parties have to

together make the first motion petition and after a gap of 6

months and not later than 18 months, have to make the

second motion petition for the grant of decree of divorce. The

period of 6 to 18 months being provided in section 13B(2) is a

period of interregnum which is intended to give the parties

time and opportunity to reflect on their move as the parties

may have second thoughts about their decision during this

period. The underlying principle behind this section is that both

the parties should be fully willing and confident about their

decision, both at the time of the first motion as well at the time

of the second motion. The time of 6 to 18 months is essentially

the time where one of the parties if has to if in doubt or has a

change of heart withdraws its petition for divorce. Mutuality is

the sine qua non for this section and the requirement is that

the consent to part from each other should be subsisting

through out this period. In the case of Pankaj Parmar v. Shikha

Parmar (supra), this court has taken a view that the period of

18 months as contemplated in the section is the time limit for

withdrawal of the first motion and not outer limit for filing of

motion for grant of decree by mutual consent and this duration

of 18 months therefore should not be taken to be a period of

limitation fixed for filing of the second motion.

6. Adverting to the facts of the case at hand, both the

parties moved the petition for divorce by mutual consent, that

is, the first and second motion were preferred by the parties

simultaneously and admittedly this was the practice in courts

earlier when the courts were taking a liberal view and

dispensing with the said statutory period of six months

between the presentation of the first and the second motion in

granting final divorce under Section 13B of the Hindu Marriage

Act. The parties herein have filed the second motion petition

alongwith the first motion on 11.7.2009 and the same was

pending consideration before the said court, therefore, it

cannot be said that the motion was not made by both the

parties within said period of 18 months. In fact the court was

to record the statements of the parties and then was to pass a

final order. It usually happens that that once the second

motion petition is filed then the separate dates are given for

recording statements and passing the order. Once the petition

is filed by the parties, the date of the second motion under

Section 13B(2) of the Hindu Marriage Act necessarily has to be

reckoned from the date of the filing of the motion and not from

the date of the recording of statements. Manifestly in the

present case the second motion petition was already before

the court and, therefore, it cannot be said that the said motion

was made by the parties after the period of 18 months.

7. Hence, this court is totally in agreement with the

law propounded by this court in the case of Pankaj Parmar not

to treat the period of 18 months as the limitation period after

which the petition for second motion cannot be preferred. The

courts while dealing with the petition under section 13B cannot

forget that the courts are required to see the complete

agreement of the parties for the dissolution of marriage and

not that the consent of the both the parties , however being

there, has been made at a date later than contemplated as

such interpretation would render the expression "divorce by

mutual consent" as otiose. The courts cannot frustrate the

purpose and intent of the said section by bringing in the

technicalities of limitation, hence making the real provision

incapacitated. It would also be apt to mention that the Apex

Court recently while dealing with the case of divorce by mutual

consent in the case of Hitesh Bhatnagar vs. Deepa Bhatnagar

decided on 18.4.2011 has held that the said period of 18

months has been specified only to ensure quick disposal of

cases of divorce by mutual consent and not to specify the

period for withdrawal of consent and thus can be withdrawn

even after that. Thus it is manifest that the Apex Court is also

inclined to give a liberal interpretation, even for withdrawal of

consent after the period of 18 months and so it can be

postulated that existence of concurrence to the decision of

divorce would precede the duration of presentation of petition.

8. Hence, in the light of the aforesaid position, the

order passed by the trial court is illegal and the same is

accordingly set aside.

9. The matter is accordingly remanded back to the

learned trial court. Both the parties are directed to appear

before said court on 10th August, 2011. The learned ADJ shall

record their respective statements in the said second motion

petition and pass a final order in terms of the Section 13B(2)

after taking into consideration the averments made by the

parties in the said second motion petition and the statements

recorded therein.

10. With the above directions, the appeal stands

disposed of.

JULY 22, 2011                     KAILASH GAMBHIR, J
Bisht