Rhythm Chauhan vs Smt. Neelam Nengnong ...
2021 Latest Caselaw 3487 HP

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                           CMPMO No. 158 of 2021
                                        Decided on: August 4, 2021




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    Rhythm Chauhan                              .........Petitioner No.1
                                            Versus





    Smt. Neelam Nengnong                            ...Petitioner No.2
    ________________________________________________________________
    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting1? Yes.





    ________________________________________________________________
    For the petitioners:   Mr. Rajesh Kumar Parmar, Advocate.

                  THROUGH VIDEO-CONFERENCING
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    Sandeep Sharma, J. (Oral)

Being aggrieved and dissatisfied with order dated

5.7.2021, passed by learned Principal Judge, Family Court, Kullu in

HMP No. 6 of 2021 (Regd. No. HMA No. 78/2021) dismissing the

joint application filed by the parties, for waiving off statutory period

of six months, while accepting their prayer to grant divorce by way

of mutual consent under S.13B of Hindu Marriage Act, petitioners

have approached this Court in the instant proceedings filed under

Art. 227 of the Constitution of India, praying therein to set aside

order dated 5.7.2021.

2. Since petitioner Nos.1 and 2 are husband and wife and

have decided to get their marriage dissolved by way of mutual

consent under S.13B of Hindu Marriage Act and they both jointly

Whether reporters of the Local papers are allowed to see the judgment? .

have approached this court in the instant proceedings, laying

therein challenge to order dated 5.7.2021 passed by learned Family

Court below, whereby their joint request to waive off statutory

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period of six months before second motion has been rejected, there

is no necessity to issue notice to either of parties and petition at

hand can be disposed of today itself on the basis of material

available on record.

3. Precisely, the facts as emerge from the record are that

the marriage inter se petitioner Nos. 1 and 2 was solemnized on

30.9.2017 and they lived in the capacity of husband and wife till

June, 2019, whereafter, due to certain differences, both started

living separately. Now since both the petitioners by way of amicable

settlement arrived inter se them have resolved to get their marriage

dissolved by way of mutual consent, they preferred a petition under

S.13B of Hindu Marriage Act (Annexure P-2) before Family Court,

Kullu, Himachal Pradesh on 2.7.2021. On 5.7.2021, Family Court

below having taken note of the joint petition filed by the petitioners

under S.13B of the Act, though recorded statements of both the

parties, but rejected the application having been filed by petitioners

praying therein for exemption of cooling period of six months for

grant of divorce.

4. Since both the parties have now decided to start new

lives, by remarrying and petitioner No.1 who is a pilot in Indian

Coast Guard, has to go abroad on official duties, petitioners have

approached this court in the instant proceedings, praying therein to

set aside order dated 5.7.2021.

5. Perusal of order dated 5.7.2021 passed by learned court

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below, though reveals that the facts as have been narrated herein

above are not in dispute but learned court below having taken note

of the fact that prior to filing petition under S.13B of the Act ibid, no

mediation/conciliation proceedings took place, and there is no

clarity with regard to the alimony paid by petitioner No.1 to

petitioner No.2, rejected the application to waive off cooling period of

six months. Besides above, learned court below, while placing

reliance upon judgment of Hon'ble Apex Court in Amardeep Singh

vs. Harveen Kaur in Civil Appeal No. 11158 of 2017 decided on

12.9.2017, recorded in the order impugned in the instant

proceedings, that the petitioners have lived together only for two

years and as such, their prayer for waiving off cooling period cannot

be acceded to.

6. Having heard learned counsel for the parties and

perused the judgment rendered by Hon'ble Apex Court in Amardeep

(supra), this court finds that the court while considering prayer to

waive off cooling period must be satisfied that the parties were

living separately for more than mandatory period and all efforts of

mediation and reconciliation have failed and there is no chance of

reconciliation and further the cooling period will only prolong their

agony. While considering application as referred to above, learned

Court below, besides considering the period of marriage inter se

applicants is also required to see that for how long period,

applicants are living separately.

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7. True it is that in the case at hand, marriage inter se

parties was solemnized in the year 2017, but it is also not in

dispute that both the parties are living separately since June, 2019

i.e. approximately for two years. Though there is no mention with

regard to statements made by petitioners in first motion but careful

perusal of impugned order nowhere suggests that the parties are

not interested in getting their marriage dissolved by way of mutual

consent. Very purpose of mediation and conciliation proceedings is

to give chance to the applicants desirous of having their marriage

dissolve, to rethink or to explore possibility of reconciliation.

8. True it is that in the case at hand, no

mediation/conciliation proceedings, if any, took place inter se

parties before their having approached court under S.13B for

dissolution of marriage by way of mutual consent, but once they

themselves have approached learned Family Court below for getting

their marriage dissolved that too after living separately for two

years, learned court below normally should not have rejected their

prayer especially keeping in view the status of petitioners, who are

well educated and petitioner No.1 is serving with Indian Coast

Guards.

9. Learned counsel for the petitioners informed this Court

that no formal order if any, on account of alimony ever came to be

passed but while settling dispute amicably inter se them, one

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cottage leased by family of petitioner No.1 has been given to

petitioner No.2 already so that she earns her livelihood. He further

undertakes before this Court that proper proof with regard to

aforesaid arrangement arrived inter parties shall be placed before

learned Family Court at the time of recording of statements of

second motion.

10. Since, the marriage inter se petitioners has broken

irreparably and there is no possibility of rapprochement, no fruitful

purpose would be served by keeping matter pending for another six

months, rather, pendency of application filed by petitioners for

dissolution of marriage would aggravate their mental agony.

11. Since the petitioners are living separately for the last

two years, cooling period can be waived off especially when there is

no possibly of rapprochement and marriage inter se them has

broken beyond repair. At this stage, it would be apt to take note of

judgment rendered by this court in Bharti Kapoor v. Des Raj,

CMPMO No. 271 of 2017, decided on 31.10.2018, relevant paras,

whereof read as under:

8. Accordingly, for the reasons and circumstances narrated herein above, present petition is ordered to be converted into a petition under Section 13B of Hindu Marriage Act. Since both the parties are living separately for the last many years and they have been litigating with each other, statutory period of six months as envisaged under Section 13B of

the Act for grant of divorce by way of mutual consent, can be waived, especially when there is no possibility of rapprochement of the parties and marriage has broken beyond repair. In this regard, it would be apt to take note of the judgment rendered by the Hon'ble Apex Court in Veena vs.

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State (Government of NCT of Delhi) and another, (2011)14 SCC 614,

wherein the Hon'ble Apex Court has held as under:

12." We have heard the learned counsel for the parties and talked to the parties. The appellant has filed a divorce petition under Section

13(1)(a) of the Hindu Marriage Act, 1955, being HMA No.397/2008 which is pending before the Court of Sanjeev Mattu, Additional District Judge, Karkardooma Courts, Delhi. In the peculiar facts and circumstances of this case, we deem it appropriate to transfer the said divorce petition to this Court and take the same on Board. The said petition is converted into one under Section 13B of the Hindu Marriage

Act and we grant divorce to the parties by mutual consent."

9. Reliance is also placed on a judgment rendered by Hon'ble Apex Court in Priyanka Khanna v. Amit Khanna, (2011) 15 SCC 612, wherein Hon'ble Apex Court has held as under:-

"7. We also see form the trend of the litigations pending between the

parties that the relationship between the couple has broken down in a very nasty manner and there is absolutely no possibility of a rapprochement between them even if the matter was to be adjourned for a period of six months as stipulated under Section 13-B of the Hindu Marriage Act. 8. We also see from the record that the first litigation had been filed by the respondent husband on 2.6.2006 and a

petition for divorce had also been filed by him in the year, 2007. We therefore, feel that it would be in the interest of justice that the period of six months should be waived in view of the above facts."

10. In the instant case also, statutory period of six months deserves to

be waived keeping in view the fact that the marriage between the parties

has broken beyond repair and there seems to be no possibility of parties living together. The Hon'ble Apex Court in Civil Appeal No.11158 of 2017 [arising out of Special Leave Petition (Civil) No.20184 of 2017] titled as

Amardeep Singh vs. Harveen Kaur, decided on 12.09.2017, has held as under:-

"13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K.

Omprakash vs. K. Nalini 10, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11, Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11 AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt14. It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they

have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section

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13B(2). Thus, the Court should consider the questions:

i) How long parties have been married?

ii) How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/ conciliation?

vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

14 AIR 2010 Ker 157

14. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and

reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds.

By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was

laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The

amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh's

"Principles of Statutory Interpretation" (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.15as follows:

15 (2005) 4 SCC 480 "The study of numerous cases on this topic does not lead to formulation of any universal rule except

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this that language alone most often is not decisive, and regard

must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: 'No universal rule can be laid down as to whether mandatory enactments shall be considered directory

only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.' " 'For ascertaining the real intention of the legislature', points out Subbarao, J. 'the court may consider inter alia, the nature and design of the

statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non- r compliance with the provisions; the fact that the non- compliance with the provisions is or is not visited by some

penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered'. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general

inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory." 18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the

statutory period under Section 13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section

13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts

in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation."

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12. It is quite apparent from bare perusal of judgment

passed by this court (supra) and Hon'ble Apex Court that the very

object of aforesaid provision is to enable the parties to dissolve a

marriage by consent, especially if marriage has broken irreparably

and there is no possibility of rapprochement.

13. In the case at hand, both the parties after having

explored possibility of rapprochement and finding no success there,

have approached the court for dissolution of marriage by way of

mutual consent and as such no fruitful purpose would be served by

keeping the matter pending for six months.

14. Accordingly, in view of detailed discussion made herein

above, petition at hand is allowed. Order dated 5.7.2021, passed by

learned Principal Judge, Family Court, Kullu in HMP No. 6 of 2021

(Regd. No. HMA No. 78/2021), is quashed and set aside and learned

court below is directed to record statements of second motion on

5.8.2021, on which date, parties undertake to appear before

learned court below. Needless to say petitioners would make

available copy of settlement arrived inter se them, especially with

regard to the cottage given to petitioner No.2 enabling her to earn

her livelihood.

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15. Registry is directed to send a copy of this judgment to

learned family court below via fax, forthwith, enabling it to do the

needful well within stipulated time.

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Authenticated copy to learned counsel for the petitioners.

                                               (Sandeep Sharma)
                                                    Judge
       August 4, 2021
          (Vikrant)




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