Surjeet Singh vs State
2021 Latest Caselaw 4804 HP

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     IN   THE    HIGH    COURT OF      HIMACHAL        PRADESH, SHIMLA




                                                             .
                  ON THE 30th DAY OF SEPTEMBER, 2021





                                   BEFORE

                HON'BLE MR. JUSTICE SANDEEP SHARMA





          CIVIL MISC.PETITION MAIN (ORIGINAL) No.220 of 2021
    Between:

    SURJEET SINGH,





    S/O LATE SH. BRAHAM CHAND,
    AGED 39 YEARS,
    R/O VILLAGE UPPER BAROT,
    P.O. FATEHPUR,
    TEHSIL SARKAGHAT,
    DISTRICT MANDI,


    HIMACHAL PRADESH.
                                                                  ....PETITIONER


    (BY MR. VIJAY CHAUDHARY,


    ADVOCATE)

    AND




    SMT. GHAMA THAKUR,





    W/O SH. SURGEET SINGH,
    AGED 32 YEARS, R/O VILLAGE
    UPPER BAROT,





    P.O. FATEHPUR,
    TEHSIL SARKAGHAT,
    DISTRICT MANDI,
    HIMACHAL PRADES AT
    PRESENT RESIDINGA T
    VILLAGE CHATRANI,
    P.O. DHARA, TEHSIL BHUNTER,
    DISTRICT KULLU, HIMACHAL
    PRADESH
                                                             ....RESPONDENT
    (NEMO)



    Whether approved for reporting?.




                                            ::: Downloaded on - 31/01/2022 23:09:10 :::CIS
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    This petition coming on for orders this day, the Court passed the following:




                                                                    .

                                        ORDER

Having regard to the nature of order proposed to be passed

in the instant case, this Court sees no necessity to issue notice to the

respondent, whose interest is otherwise with the petitioner.

2. Being aggrieved and dissatisfied with order dated 8.9.2021,

passed by the learned Principal Judge, Family Court, Kullu, H.P. in

CMP No. 26 of 2021 in HMP No. 102 of 2021, titled Ghama Thakur v.

Surjeet Singh, whereby joint application having been filed by the

petitioner and the respondent, praying therein to waive the statutory

cooling period of six months, came to be dismissed, petitioner has

approached this Court in the instant proceedings filed under Article

227 of the Constitution of India, praying therein to set-aside aforesaid

impugned order dated 8.9.2021.

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

petitioner and respondent, who are husband and wife, decided to get

their marriage dissolved by way of mutual consent and as such,

approached the learned Family Court Kullu, by way of application

under Section 13 B of the Act, praying therein for dissolution of

marriage by way of mutual consent (Annexure A-1). Alongwith the

aforesaid petition, petitioner and the respondent also filed an

application, seeking therein exemption of cooling period of six months.

On 3.9.2021, court after having heard learned counsel for the parties

on the application referred herein above, adjourned the matter for

8.9.2021 (Annexure A-3). Since on 8.9.2021, aforesaid prayer made on

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behalf of the petitioner and respondent came to be dismissed,

petitioner has approached this Court in the instant proceedings.

4. Perusal of order dated 8.9.2021, passed by the court below

reveals that court below while placing reliance upon judgment dated

12.9.2017, passed by the Hon'ble Apex Court in Amardeep Singh v.

Harveen Kaur in Civil Appeal No. 11158 of 2017, recorded in the order

that petitioner and respondent have lived together only for one year

and as such, their prayer for waiving cooling period cannot be acceded

to. Besides above, court has also recorded in para-6 of the impugned

order that there is nothing on record to show that any efforts for

mediation and conciliation have been tried, which is a condition

prerequisite for considering the prayer for dissolution of marriage while

exercising power under Section 13 B of the Act.

5. 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

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separately.

6. In the case at hand, marriage inter-se parties was

solemnized on 5.5.2017 and thereafter, they lived together till

10.3.2018. Since 10.3.2018, both the parties are living separately on

account of certain differences and there is no possibility of

reconciliation between parties. Order passed by the court below itself

reveals that alongwith the aforesaid petition, parties also filed an

application, seeking therein exemption to waive off cooling period of six

months and before filing such application, petitioner had already paid

sum of Rs. 5.00 lac to the respondent Ghama Thakur. It has been also

decided inter-se parties that remaining amount of Rs. 5.00 lac, shall be

paid by the petitioner to the respondent at the time of recording of their

statement before the court below. Though order impugned in the

instant proceedings reveals that parties prior to filing the application at

hand had also filed one application under Section 13B of the Act,

bearing HMP No. 40 of 2019, which was fixed for second motion on

1.1.2020 but in those proceedings, respondent-wife disclosed she was

not ready to seek divorce by way of mutual consent and her such

statement was recorded on 1.1.2020. It appears that in earlier petition

filed under Section 13 B of the Act, the petitioner was unable to pay the

remaining amount of alimony and as such, at the time of recording of

the statement of second motion, respondent refused to take the divorce

by way of mutual consent.

7. Now since both the petitioner and the respondent by way of

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joint application under Section 13 B of the Act (Annexure A-1), which is

subject matter of the present case, have approached the competent

court of law, for their dissolution of marriage by way mutual consent,

there is every reason to presume and believe that there is no possibility

of rapprochement inter-se parties and they do not intend to live

together. In para-8 of the application, it has been categorically averred

that the petitioner has already paid sum of Rs. 5.00 lac through cheque

in favour of the respondent, whereas remaining amount shall be paid

by the petitioner at the time of the recording of the statement before the

court below.

8. True it is that no mediation/conciliation proceedings, if

any, took place inter-se parties, before their having approached the

court under Section 13 B of the Act for dissolution of marriage by way

of mutual consent, but once they themselves have approached the

learned Family Court below for getting their marriage dissolved that too

after living separately for two years, learned court below ought not have

rejected their prayer, especially when parties are well educated. Since,

the marriage inter se parties 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.

9. Since the petitioner and the respondent are living

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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. 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. Neeta

13. 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 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

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 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 noncompliance with the provisions; the fact that the noncompliance 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

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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;

r 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."

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."

10. Accordingly, in view of detailed discussion made herein

above, petition at hand is allowed. Order dated 8.9.2021, passed by

learned Principal Judge, Family Court, Kullu in HMP No. 102 of 2021,

titled Ghama Thakur v. Surjeet Singh, is quashed and set aside and

.

learned court below is directed to record statements of the parties on

4.10.2021, on which date, parties undertake to appear before learned

court below. In the aforesaid terms, present petition stands disposed of

alongwith pending applications, if any. Parties are permitted to place

on record the downloaded copy of the instant order before the court

below, so that on the next date, needful is done in terms of

observations made herein above.

    30th September, 2021                          (Sandeep Sharma),
         (manjit)                                        Judge