Statutory Period of Six Months in Mutual Consent Divorce Under Sec.13-B of HMA.

When statutory Period of six months can waived in Mutual Consent divorce 

 

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satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

  1. 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;
  2. 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;

  1. iv) the waiting period will only prolong their agony.
  2. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11158 OF 2017

(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)

Amardeep Singh                                              …Appellant

Versus

Harveen Kaur                                                …Respondent

JUDGMENT

ADARSH KUMAR GOEL, J.

  1. The question which arises for consideration in this appeal is whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.

Signature Not Verified Digitally signed by SWETA DHYANI Date: 2017.09.12 16:23:52 IST Reason:

  1. Factual matrix giving rise to this appeal is that marriage between the parties took place on 16 th January, 1994 at Delhi. Two children were born in 1995 and 2003 respectively. Since 2008 the parties are living separately. Disputes between the parties gave rise to civil and criminal proceedings. Finally, on 28 th April, 2017 a settlement was arrived at to resolve all the disputes and seeks divorce by mutual consent. The respondent wife is to be given permanent alimony of Rs.2.75 crores. Accordingly, HMA No. 1059 of 2017 was filed before the Family Court (West), Tis Hazari Court, New Delhi and on 8 th May, 2017 statements of the parties were recorded. The appellant husband has also handed over two cheques of Rs.50,00,000/-, which have been duly honoured, towards part payment of permanent alimony. Custody of the children is to be with the appellant. They have sought waiver of the period of six months for the second motion on the ground that they have been living separately for the last more than eight years and there is no possibility of their re union. Any delay will affect the chances of their resettlement. The parties have moved this Court on the ground that only this Court can relax the six months period as per decisions of this Court.
  2. Reliance has been placed inter alia on decision of this Court in Nikhil Kumar vs. Rupali Kumar 1 wherein the statutory period of six months was waived by this Court under Article 142 of the Constitution and the marriage was dissolved.

The text of Section 13B is as follows:

“13-B. Divorce by mutual consent.— (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

  1. There is conflict of decisions of this Court on the question whether exercise of power under Article 142 to waive the statutory period under Section 13B of the Act was appropriate. In 1 (2016) 13 SCC 383
    Manish Goel versus Rohini Goel2, a Bench of two-Judges of this Court held that jurisdiction of this Court under Article 142 could not be used to waive the statutory period of six months for filing the second motion under Section 13B, as doing so will be passing an order in contravention of a statutory provision. It was observed :

“14. Generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (Vide State of Punjab v. Renuka Singla[(1994) 1 SCC 175], State of U.P. v. Harish Chandra [(1996) 9 SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SC 560]

  1. A Constitution Bench of this Court in Prem Chand Garg v. Excise Commr.[AIR 1963 SCC 996] held as under: (AIR p. 1002, para 12) “12. … An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.” (emphasis supplied) The Constitution Benches of this Court in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] and E.S.P.

Rajaram v. Union of India [(2001) 2 SCC 186] held that under Article 142 of the Constitution, this Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only 2 (2010) 4 SCC 393
through a mechanism prescribed in another statute. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure.”

  1. This Court noted that power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony 3. This view was reiterated in Poonam versus Sumit Tanwar4.
  2. In Neeti Malviya versus Rakesh Malviya5, this Court observed that there was conflict of decisions in Manish Goel (supra) and Anjana Kishore versus Puneet Kishore6. The matter was referred to bench of three-Judges. However, since the matter became infructuous on account of grant of divorce in the meanwhile7.

3 Para 11 ibid, noting earlier decisions in Romesh Chander v. Savitri (1995) 2 SCC 7; Kanchan Devi v. Promod Kumar Mittal (1996) 8 SCC 90; Anita Sabharwal v. Anil Sabharwal (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226; Kiran v. Sharad Dutt (2000)10 SCC 243; Swati Verma v. Rajan Verma (2004) 1 SCC 123; Harpit Singh Anand v. State of W.B. (2004) 10 SCC 505; Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410; Durga Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220; Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 and Satish Sitole v. Ganga (2008) 7 SCC 734 4 (2010) 4 SCC 460 5 (2010) 6 SCC 413 6 (2002) 10 SCC 194 7 Order dated 23rd August, 2011 in Transfer Petition (Civil)No. 899 of 2007

  1. Without any reference to the judgment in Manish Goel (supra), power under Article 142 of the Constitution has been exercised by this Court in number of cases 8 even after the said judgment.
  2. We find that in Anjana Kishore (supra), this Court was dealing with a transfer petition and the parties reached a settlement. This Court waived the six months period under Article 142 in the facts and circumstances of the case. In Anil Kumar Jain versus Maya Jain9, one of the parties withdrew the consent. This Court held that marriage had irretrievably broken down and though the civil courts and the High Court could not exercise power contrary to the statutory provisions, this Court under Article 142 could exercise such power in the interests of justice. Accordingly the decree for divorce was granted. 8 Priyanka Singh v. Jayant Singh(2010) 15 SCC 390; Sarita Singh v. Rajeshwar Singh (2010) 15 SCC 374; Harpreet Singh Popli v. Manmeet Kaur Pople (2010) 15 SCC 316; Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234; Veena v. State (Govt of NCT of Delhi) (2011) 14 SCC 614; Priyanka Khanna v. Amit Khanna (2011) 15 SCC 612; Devinder Singh Narula v. Meenakshi Nangia (2012) 8 SCC 580; Vimi Vinod Chopra v. Vinod Gulshan Chpra (2013) 15 SCC 547; Priyanka Chawla v. Amit Chawla (2016) 3 SCC 126; Nikhil Kumar v. Rupali Kumar (2016) 13 SCC 383 9 (2009) 10 SCC 415
  3. After considering the above decisions, we are of the view that since Manish Goel (supra) holds the field, in absence of contrary decisions by a larger Bench, power under Article 142 of the Constitution cannot be exercised contrary to the statutory provisions, especially when no proceedings are pending before this Court and this Court is approached only for the purpose of waiver of the statute.
  4. However, we find that the question whether Section 13B(2) is to be read as mandatory or

discretionary needs to be gone into. In Manish Goel (supra), this question was not gone into as it was not raised. This Court observed :

“23. The learned counsel for the petitioner is not able to advance arguments on the issue as to whether, statutory period prescribed under Section 13-B(1) of the Act is mandatory or directory and if directory, whether could be dispensed with even by the High Court in exercise of its writ/appellate jurisdiction.”

  1. Accordingly, vide order dated 18th August, 2017, we passed the following order :

“List the matter on 23rd August, 2017 to consider the question whether provision of Section 13B of the Hindu Marriage, Act, 1955 laying down cooling off period of six months is a mandatory requirement or it is open to the Family Court to
waive the same having regard to the interest of justice in an individual case.

Mr. K.V. Vishwanathan, senior counsel is appointed as Amicus to assist the Court. Registry to furnish copy of necessary papers to learned Amicus”.

  1. Accordingly, learned amicus curiae has assisted the Court. We record our gratitude for the valuable assistance rendered by learned amicus who has been ably assisted by S/Shri Abhishek Kaushik, Vrinda Bhandari and Mukunda Rao Angara, Advocates.
  2. 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 13B(2). Thus, the Court should consider the questions:
  3. i)     How long parties have been married?
  4. ii)    How long litigation is pending?

iii) How long they have been staying apart?

  1. iv) Are there any other proceedings between the parties?
  2. v) Have the parties attended mediation/conciliation?
  3. vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

AIR 2010 Ker 157

  1. 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.
  2. 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.
  3. 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.
  4. 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 non-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.”

  1. 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 :
  2. 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;
  3. 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;

  1. iv) the waiting period will only prolong their agony.
  2. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
  3. 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.
  4. 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.
  5. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.
  6. The parties are now at liberty to move the concerned court for fresh consideration in the light of this order.

The appeal is disposed of accordingly.

…………………………………..J.

(ADARSH KUMAR GOEL) …………………………………..J.

(UDAY UMESH LALIT) NEW DELHI;

 

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Setting aside ex parte divorce decree.

 

Setting aside decree ex parte against defendant.– In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an Order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an Order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

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Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be sent aside as against all or any of the other defendant also:

Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Explanation : Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree.

The Hon’ble Supreme Court held in the matter of :  Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”. (See also: Brij Indar Singh v.

Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR  1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).

In the matter of  Arjun Singh vs Mohindra Kumar & Ors To set aside this ex parte decree  it would be convenient  to mention a point, not seriously pressed before us, but which at earlier stages was thought to have considerable significance for the decision of this question viz., the difference between the words “good cause” for non- appearance in        O. IX, r. 7 and “sufficient cause” for the same purpose in O. IX, r. 13                as pointing to different criteria of “goodness” or “sufficiency” for succeeding in the two proceedings

The Hon’ble Supreme Court further Held in the matter of Basawaraj & Anr vs Spl.Laq Officer The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide: Madanlal v. Shyamlal, AIR 2002 SC 100; and Ram Nath Sao @ Ram Nath Sahu & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201.)

 

JUDGMENTS

IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE

C.O. No. 1697 of 2013 Present :

The Hon’ble Mr. Justice Prasenjit Mandal

Sri Prabir Kishore Chakravarty.

Versus

Smt. Soma Chakravarty.

For the petitioner/husband: Mr. Aniruddha Chatterjee, Mr. Kushal Chatterjee.

For the opposite party/wife: Mr. Anit Kr. Rakshit. Heard On: 24.01.2014 & 07.02.2014 Judgement On: February 12, 2014.

Prasenjit Mandal, J.: This application is at the instance of the husband/petitioner and is directed against the judgment and order dated March 19, 2013 passed by the learned Additional District Judge, 14th Court, Alipore in Misc. Case No.16 of 2009 under Order 9 Rule 13 of the C.P.C. arising out of the Matrimonial Suit No.1565 of 2008 (renumbered as Matrimonial Suit No.78 of 2009) thereby allowing the said misc. case with costs of Rs.5,000/- to be paid by the wife/opposite party herein to the husband/petitioner herein. The result is that the ex parte decree for divorce passed on June 29, 2009 in the aforesaid matrimonial suit has been set aside.

The husband/petitioner herein preferred the aforesaid matrimonial suit for divorce before the learned District Judge, Alipore and accordingly, summons was duly served upon the wife/opposite party herein, but, she did not prefer to contest the said matrimonial suit for divorce. As a result, the said matrimonial suit was decreed ex parte on June 29, 2009 thereby decreeing the suit ex parte and declaring that the marriage ties between the parties be dissolved by the decree for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Thereafter, the wife/opposite party herein filed an application under Order 9 Rule 13 of the C.P.C. and the said application was converted into the Misc. Case No.16 of 2009. Both the parties adduced evidence in support of their contentions and upon analysis of the evidence on record, the learned Trial Judge allowed the said misc. case on March 19, 2013 with costs of Rs.5,000/- thereby setting aside the ex parte decree dated June 29, 2009. Being aggrieved by such judgment and order, the husband/petitioner herein has preferred this application.

The wife/opposite party herein is contesting the said application.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that before disposal of the said matrimonial suit ex parte on June 29, 2009, the learned Trial Judge took necessary steps for service of summons. Even steps for substituted service under Order 5 Rule 20 of the C.P.C. were also taken up by making a paper publication in a widely circulated newspaper. In spite of that, the wife did not come to contest the said matrimonial suit.

Mr. Kushal Chatterjee, learned Advocate appearing for the husband/petitioner herein has contended that the said application under Order 9 Rule 13 of the C.P.C. is not maintainable at all, in view of the fact that though the ex parte decree had been passed on June 29, 2009, the application for setting aside the ex parte decree was filed only on August 29, 2009 and an interpolation had been made in the application to show that the said application had been filed on July 29, 2009.

He has also contended that since the application under Order 9 Rule 13 of the C.P.C. had been filed beyond the period of limitation, there being no application under Section 5 of the Limitation Act for condonation of the delay, the said application is not maintainable at all being barred by the limitation.

He has also contended that there being an interpolation as to the date of filing of the application, the wife/opposite party herein had committed fraud upon the Court and for that reason, the wife is not entitled to get any relief as sought for in the misc. case.

Mr. Kushal Chatterjee has also contended that the wife has failed to show that she was prevented by sufficient cause from appearing before the Court and the fact that, mere irregularity in the service of summons is not at all a ground for setting aside the ex parte decree under Order 9 Rule 13 of the C.P.C.

He has also drawn my attention to the fact that, during the cross-examination of the wife in Misc. Case No.16 of 2009, it has transpired that she came to learn about the institution of the matrimonial suit against her in the Durgapur Court when she went there to appear in a case under Section 125 of the Cr.P.C.

Moreover, the criminal case under Section 498A had been filed at Alipore Court and so, from the application filed by the husband in the said case it would reveal that the husband had clearly stated about the institution of the said matrimonial suit for divorce.

Mr. Aniruddha Chatterjee, learned Advocate appearing for the petitioner has also added that as per second proviso to Order 9 Rule 13 of the C.P.C., no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

In support of the contention Mr. Chatterjee has submitted that in the instant case it is not the case of the wife that no summons was ever served upon her, but, she had no knowledge of the date of hearing of the said suit. The husband had taken all the steps including the steps for substituted service. Not only that, while the husband filed an application for anticipatory bail for the criminal case lodged by the wife under Section 498A of the I.P.C., he stated in the application that he had already filed a suit for divorce and for that reason such criminal case had been filed by the wife.

He has also contended that the wife engaged a lawyer as de facto complainant and he has submitted through the public prosecutor opposing the prayer for bail and so, from such conduct it appears that the declaration of the husband in the said application for bail that he had already filed a suit for divorce proves that the wife had knowledge about the institution of the said suit for divorce. Yet she did not appear in the suit. Since, no application under Section 5 of the Limitation Act has been filed in support of the application under Order 9 Rule 13 of the C.P.C., the same being barred by limitation, the learned Trial Judge was not justified at all in allowing the said application under Order 9 Rule 13 of the C.P.C.

Mr. Aniruddha Chatterjee has also contended that there is no evidence on limitation. The misc. case under Order 9 Rule 13 of the C.P.C. is not maintainable at all and in support of his contention he has referred to the decisions of Mahabir Singh v. Subhas & Ors reported in 2008 (1) SCC 358 particularly paragraph no.6 to 9 thus, he has contended that to set aside a decree passed ex parte, the limitation is 30 days from the date of the decree or where the summons for notice was not duly served, when the applicant had knowledge of the decree. He has also contended that in terms of Section 3 of the Limitation Act, 1963, no Court shall have jurisdiction to entertain any suit or application if the same has been filed after the expiry of the period of limitation.

Mr. Chatterjee has also relied on the second proviso to Order 9 Rule 13 of the C.P.C. and submitted that as per decision of Parimal v. Veena alias Bharti reported in 2011 (3) SCC 545 particularly paragraph no.12, it is obligatory for the Appellate Court not to interfere with an ex parte decree unless it meets the statutory requirement particularly the paragraph no.12 and thus, he has contended that the ex parte decree may be set aside, if the party satisfies the Court that summons had not been duly served or she was prevented by sufficient cause from appearing when the suit was called on for hearing. In the instant case, the appropriate steps were taken under Order 5 Rule 20 of the C.P.c. by publication in a widely circulated newspaper when the notice to the addressee was returned ‘unserved’. So, all the necessary steps had been taken by the husband and, therefore, mere irregularity will not be a ground for setting aside the ex parte decree.

He has also relied upon the decision of Chiranjilal Agarwalla & Anr. v. Jai Hind Investments and Industries Pvt. Ltd. & Anr. reported in AIR 1978 Cal 177 particularly paragraph no.17 and thus, he has contended that mere non-service of summons is not enough to find a cause of action for setting aside a decree. Fraud must be proved for vacating an ex parte decree, otherwise not. Thus, he has contended that the application is not maintainable at all and since fraud had been committed, the said misc. case is liable to be dismissed.

Per contra, Mr. Anit Rakshit learned Advocate appearing for the wife/opposite party herein has contended that, in fact, the application under Order 9 Rule 13 of the C.P.C. had not been filed at all on August 29, 2009 as contended by the husband/petitioner herein but, in fact, it was filed on July 29, 2009 and this fact would reveal from the acknowledgement sheet shown by him to this Court which lays down the date of filing the misc. case on July 29, 2009.

The matrimonial suit was filed in the Court of Alipore and not in any Court under the district of Burdwan. Admittedly, the wife is residing at Durgapur and the husband has contended that he took a rented accommodation at Thakur pukur and he requested the wife to come and stay in the said rental accommodation with the child and the wife has contended that she never stayed in the rented accommodation at Thakurpukur even for a single day. So, when the wife resides outside the jurisdiction of the Court, summons was also to be served upon the wife under the provisions of Order 5 Rule 9(4) and Order 5 Rule 21 of the C.P.C. But, this procedure has not been followed in the instant case.

Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the materials on record, I find that the matrimonial suit is for a decree of divorce at the instance of the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and so, when a decree of desolution of marriage is passed, the marriage tie between the two comes to an end. Admittedly, a child was born in the wedlock and the future of the child is to be considered by passing appropriate orders upon hearing both the sides.

Mr. Anit Rakshit has also pointed out the receipt showing filing of the misc. case under Order 9 Rule 13 of the C.P.C. on July 29, 2009 and thus, he has the materials in support of such contention.

The parties have adduced evidence in support of the respective contentions and from the deposition, it transpires that no notice/summons was served upon the wife through the process server of the Court. Since the wife has taken so other steps such as, filing of a case under Section 125 of the Cr.P.C., a criminal case under Section 498A of the I.P.C. and another case under Section 94 of the C.P.C., it is expected that had she received a notice or summons of the suit for divorce, she would have contested the same. So, the allegation of fraud as contended by the husband cannot be accepted and in my view, the question of limitation does not arise at all, the misc. case having been filed within the statutory period of 30 days from the date of the ex parte decree.

It is a specific contention of the wife that the said application was fixed for hearing, but, she cannot state the exact date of hearing of the said application or the fact that, the said application was fixed for hearing on July 20, 2009. But, it is a specific contention that she came to know about the ex parte decree in the middle of July, 2009. She has also contended that the husband did not inform her of the institution of the divorce proceeding and by this, fraud had been committed upon her.

Anyway, the steps taken for substituted service by the husband become rebuttable and the entire matter reveals the fact of the particular case as to service and there cannot be any straight jacket formula to decide that in this case, summons should be treated as duly served under Order 5 Rule 20 of the C.P.C. Since there is a rebuttal on behalf of the wife, in my view, the learned Trial Judge has rightly set aside the ex parte decree so that, the rights and obligations between the parties arising out of marriage tie could be decided upon hearing both the sides. It is not the case of the husband that immediately on getting the ex parte decree he had married and issues were born out of such marriage and so, in my view, the decision of Parimal (supra) will not be applicable in the instant case. So, in consideration of the nature of the relief sought for in that matrimonial proceeding and such situation, in my view, the learned Trial Judge has rightly dealt with the matter thereby setting aside the ex parte decree. There is no ground to reverse the findings of setting aside the ex parte decree.

Though both the parties to the proceeding are educated and are earning from the respective profession, in my view, the awarding costs against the wife and in favour of the husband to the tune of Rs.5,000/- cannot be sustained in a matrimonial proceeding. Therefore the order of the awarding costs of Rs.5,000/- by the learned Trial Judge be set aside.

The application is, therefore, disposed of in the manner indicated above and the impugned judgment and order is modified to the extent as indicated above.

However, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.

(Prasenjit Mandal, J.)

 

 

 

 

Transfer Petition of Divorce in Supreme Court of India.

“This petition is filed under Section 25 of the Code of Civil Procedure seeking transfer of proceedings initiated by the respondent under Section 13 of the Hindu Marriage Act at Jabalpur. According to the petitioner, who is the wife of the respondent, she will face acute hardship in contesting the proceedings at Jabalpur as she is living at Hyderabad. The marriage took place at Hyderabad. The petitioner has to look after her minor daughter who is living with her.

Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the present nature could be filed at the place where the marriage is solemnized or the respondent, at the time of the presentation of the petition, resides or where the parties to the marriage last resided together or where the wife is residing on the date of the presentation of the petition, in case she is the petitioner or in certain situations (as stipulated in clause iv) where the petitioner resides. This Court is flooded with petitions of this nature and having regard to the convenience of the wife transfer is normally allowed. However, in the process the litigants have to travel to this Court and spend on litigation. Question is whether this can be avoided?

We are of the view that if orders are to be passed in every individual petition, this causes great hardship to the litigants who have to come to this Court. Moreover in this process, the matrimonial matters which are required to be dealt with expeditiously are delayed. In these circumstances, we are prima facie of the view that we need to consider whether we could pass a general order to the effect that in case where husband files matrimonial proceedings at place where wife does not reside, the court concerned should entertain such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife as may be determined by the Court. The Court may also pass orders from time to time for further deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases, the husband may take proceedings before the Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any other option to remedy the situation can also be considered.


REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL original JURISDICTION

Transfer petition (CIVIL) NO. 1912 OF 2014

Krishna Veni Nagam                                 …PETITIONER

VERSUS

Harish nagam                                            …RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J

 

  1. This transfer petition has been filed for transfer of Case No.179A/2013 u/s 13 of the Hindu Marriage Act, 1955 (the Act) titled “Harish Nagam vs. Krishna Veni Nagam” pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh to the Family Court Hyderabad, Andhra Pradesh.
  2. Case of the petitioner-wife is that she was married to the respondent- husband in the year 2008 at Kukatpally, Hyderabad. She was blessed with a girl child in 2009. While living in her in-law’s house at Jabalpur, she was ill-treated. She was subjected to mental and physical torture. She suffered injury on her spinal cord. She left the matrimonial home in 2012.
  3. The respondent-husband filed application for restitution of conjugal rights which was later on got dismissed as withdrawn. Thereafter, a divorce petition has been filed at Jabalpur while the petitioner has filed a domestic violence case at Hyderabad. Since the petitioner-wife, along with her minor daughter, is living with her parents, she cannot undertake long journey and contest the proceedings at Jabalpur by neglecting her minor child. She also apprehends threat to her security in attending proceedings at Jabalpur.
  4. On 7th January, 2015, notice was issued and stay of proceedings was granted. The matter has been pending in this Court for more than two years.
  5. On 9th January, 2017 when the matter came-up for hearing, the following order was passed:

“This petition is filed under Section 25 of the Code of Civil Procedure seeking transfer of proceedings initiated by the respondent under Section 13 of the Hindu Marriage Act at Jabalpur. According to the petitioner, who is the wife of the respondent, she will face acute hardship in contesting the proceedings at Jabalpur as she is living at Hyderabad. The marriage took place at Hyderabad. The petitioner has to look after her minor daughter who is living with her.

Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the present nature could be filed at the place where the marriage is solemnized or the respondent, at the time of the presentation of the petition, resides or where the parties to the marriage last resided together or where the wife is residing on the date of the presentation of the petition, in case she is the petitioner or in certain situations (as stipulated in clause iv) where the petitioner resides. This Court is flooded with petitions of this nature and having regard to the convenience of the wife transfer is normally allowed. However, in the process the litigants have to travel to this Court and spend on litigation. Question is whether this can be avoided?

We are of the view that if orders are to be passed in every individual petition, this causes great hardship to the litigants who have to come to this Court. Moreover in this process, the matrimonial matters which are required to be dealt with expeditiously are delayed. In these circumstances, we are prima facie of the view that we need to consider whether we could pass a general order to the effect that in case where husband files matrimonial proceedings at place where wife does not reside, the court concerned should entertain such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife as may be determined by the Court. The Court may also pass orders from time to time for further deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases, the husband may take proceedings before the Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any other option to remedy the situation can also be considered.

However, before passing a final order, we consider it necessary to hear learned Attorney General who may depute some law officer to assist this Court.

List the matter on 31st January, 2017.

We also request Mr. C.A. Sundaram, Senior Advocate to assist this Court as amicus curiae. A set of papers may be furnished to the amicus.” (Emphasis added)

  1. Thus, the question is whether an order can be passed so as to provide a better alternative to each individual being required to move this Court.
  2. We have already noted that large number of transfer petitions of the present nature are being filed in this Court and are being mechanically allowed. Similar observation was made by this Court more than 10 years ago in Anindita Das v. Srijit Das[1] “…On an average at least 10 to 15 transfer petitions are on board of each court on each admission day.” It has also been observed in a number of cases that in absence of any male member being available to accompany the wife who is party to matrimonial proceedings to a different place, it may render it “expedient for ends of justice” to transfer proceedings[2].
  3. Of course in some cases, it was observed that instead of proceedings being transferred, the husband should pay travel, lodging and boarding expenses of the wife and/or person accompanying for each hearing[3]. This trend has also been followed in other matrimonial disputes, including guardianship dispute, etc.[4]
  4. Spirit behind the orders of this Court in allowing the transfer petitions filed by wives being almost mechanically allowing is that they are not denied justice on account of their inability to participate in proceedings instituted at a different place on account of difficulty either on account of financial or physical hardship. Our Constitutional scheme provides for guaranteeing equal access to justice[5], power of the State to make special provisions for women and children[6] and duty to uphold the dignity of women[7]. Various steps have been taken in this direction[8].
  5. As noted in the Order dated 9th January, 2017 quoted above, Section 19 of the Act permits proceedings to be filed not only at a place where the wife resides but also at place where marriage is solemnized or the place where the parties last resided together. It is mostly in the said situations that the wife has hardship in contesting proceedings. At the same time, under the law the husband is legally entitled to file proceedings at such places. Territorial jurisdiction of court is statutorily laid down in C.P.C. or other concerned statutes.
  6. Accordingly, we have heard Shri C.A. Sundaram, learned senior counsel as amicus curiae. Learned amicus has suggested that Section 19 of the Act should be interpreted to mean that the jurisdiction at the place other than where wife resides being available only at the option of the wife or that such jurisdiction will be available in exceptional cases where the wife is employed and the husband is unemployed or where the husband suffers from physical or other handicap or is looking after the minor child. Even though we are unable to give such interpretation in the face of plain language of statute to the contrary and it is for the legislature to make such suitable amendment as may be considered necessary, we are certainly inclined to issue directions in the interest of justice consistent with the statute.
  7. Mr. Nadkarni, learned Addl. Solicitor General has suggested that it will be appropriate to give some directions to meet the situation. He submitted that paramount consideration in dealing with the issue ought to be the interest of justice and not mere convenience of the parties. Thus, where husband files a petition at a place away from the residence of the wife, the husband can be required to bear travel and incidental expenses of the wife, if it is so considered appropriate in the interest of justice. At the same time, if the husband has genuine difficulty in making the deposit, proceedings can be conducted by video conferencing. At least one court room in every district court ought to be equipped with the video conferencing facility. The interest of the minor child has also to be kept in mind along with the interest of the senior citizens whose interest may be affected by one of the parties being required to undertake trips to distant places to face the proceedings. Protracted litigation ought to be avoided by better management and coordination so that number of adjournments can be reduced.
  8. We have considered the above suggestions. In this respect, we may also refer to the doctrine of forum non conveniens which can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice. In Modi Entertainment Network and anr. v. W.S.G. Cricket Pte. Ltd.[9] this Court observed: “19. In Spiliada Maritime [10]case the House of Lords laid down the following principle:

“The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in which the case could be tried more suitably for the interest of all the parties and for the ends of justice.” The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances militating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried.” Though these observations have been made in the context of granting anti suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the plaintiff is the dominus litis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed[11].

  1. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.
  2. The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. Legal Aid Committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought to be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution.
  3. The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/ information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts.
  4. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.
  5. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:-
  6. i) Availability of video conferencing facility.
  7. ii) Availability of legal aid service.

iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.

  1. iv) E-mail address/phone number, if any, at which litigant from out station may communicate.
  2. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017. However, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No.179A/2013 under Section 13 of the Act titled “Harish Nagam vs. Krishna Veni Nagam” pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video conferencing. Records shall be sent by court where proceedings are pending to the transferee court forthwith.
  3. The Registry to transmit a copy of this order to the courts concerned. A copy of this order be sent to all the High Courts for appropriate action.
  4. We place on record our appreciation for the valuable assistance rendered by Mr. Atmaram N.S. Nadkarni, learned Additional Solicitor General and Mr. C.A. Sundaram, learned Senior Advocate.
  5. The transfer petition is disposed of accordingly.

…………..…………………………….J.

 

[ADARSH KUMAR GOEL] .….……………………..……………..J.

 

[UDAY UMESH LALIT] NEW DELHI;

How and where I Can File my divorce Petition in India.

Instructions

 indian-wedding-big-image-1_1427799751_725x725

Hindu marriage joins two individuals for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksha (ultimate spiritual release) together. It is a union of two individuals as husband and wife, and is recognized by law.

The marriage tied their nuptial knot to bring about the union of souls. The marriage creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic philosophy, it is sanskar- sacrament, one of the sixteen important sacraments essential to be taken during one’s lifetime. As a result of marriage there may be physical union between the parties of the marriage for procreation of lineal progeny and for ensuring spiritual salvation and performance of religious rites but what is essentially contemplated is the union of two souls. Marriage is considered to be a junction of three important duties i.e. social, religious and spiritual

Divorce

images-123

According to the Indian divorce laws there are mainly two ways to obtain you divorce, the mutual divorce and the contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to a settlement and get a “no-fault divorce”. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage act that you are entitled to. There are separate divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing for divorce in India. Laws are even laid down for Inter-cast marriages under the Special Marriage Act, 1956.

Types of Divorce

Mutual Consent – Both the spouses are in agreement that divorce cannot be avoided and they both opt for a “no fault” Divorce.

Section 28. Divorce by mutual consent Under Special Marriage Act

mutual divorce

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the avertments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree

Section 13-B of Hindu Marriage Act,1955,

Divorce by mutual Consent.

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, 1976 , (68 of 1976 .) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that thy have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Contested Divorce – The spouse seeking divorce can file under the appropirate faith based law under which they got married or in case of civil marriage under the appropirate law under which they married or their marriage was registered.

Governing Laws

Hindus – The Hindu Marriage Act, 1955

Christians – The Divorce Act,1869, The Indian Christian Marriage Act,1872

Parsis – The Parsi Marriage and Divorce Act,1936

Muslims – Shariat Law, The Dissolution of Muslim Marriage Act,1939

Inter-cast/Secular – Special Marriage Act, 1954, The Foreign Marriage Act,1969

Major Grounds for Divorce

Adultery

Deserting the spouse for two or more years

Physical or mental cruelty

Conversion to another religion in case of religious marriage

Incurable disease such as leprosy, venereal disease in a communicable form

Insanity, unsound mind or mental disorder

Renounced the world by entering any religious order in case of religious marriage

Unheard of as being living for a period of seven years or more

Section 19 in The Hindu Marriage Act, 1955 (Jurisdiction to File Divorce Petition in India).

Court to which petition shall be presented. —Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

41 [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]

Jurisdiction of the Court If a marriage is solemnised at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on a ground that the husband resides outside the limits of municipal corporation; Arjun Singhal v. Pushpa Karwel, AIR 2003 MP 189.

No decree for divorce on one isolated incident can be passed.

The Hon’ble Supreme Court held that :-

“We are not impressed by the submission of the learned counsel for the
respondent that an incident which occurred somewhere in 2010 when the
appellant visited the office of the respondent and alleged to have
misbehaved with the respondent in front of other officers would constitute
an act of cruelty on the part of the appellant so as to enable the
respondent to claim divorce. In the first place, no decree for divorce on
one isolated incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to
constitute an act of cruelty unless it is further supported by some
incidents of alike nature. It was not so.”

We are also not impressed by the submission of the learned counsel
for the respondent that since the appellant had made allegation against the
respondent of his having extra-marital relation and hence such allegation
would also constitute an act of cruelty on the part of the appellant
entitling the respondent to claim decree for dissolution of marriage.
34) Similarly, we are also not impressed by the submission of learned
counsel for the respondent that since both have been living separately for
quite some time and hence this may be considered a good ground to give
divorce.

In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the grounds of cruelty
taken by the respondent in his petition does not include these grounds.
Third, even if some stray allegations were made by the wife in her
pleading/evidence as were relied upon by the learned counsel are of no
relevance because, as mentioned above, these ground were not pleaded in the
petition by the respondent for seeking a decree of divorce and nor were put
in issue; and lastly, the burden being on the respondent, the same could be
discharged by the respondent by pleading and then proving. It was not so
done. It is for these reasons, we cannot accept the aforementioned two
submissions for affirming the decree of divorce.

————————————————————————————

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.7114-7115 OF 2014

Suman Singh ….Appellant(s)
VERSUS
Sanjay Singh …Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) These appeals are filed by the appellant (wife) against the final
judgment and order dated 23.05.2013 passed by the High Court of Delhi at
New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013 by which the
High Court dismissed the appeals filed by the appellant and confirmed the
judgment dated 14.12.2010 of the Principal Judge, Family Courts, Rohini
which had granted decree for dissolution of marriage in favour of the
respondent (husband) and, in consequence, also affirmed the order
dismissing the petition filed by the appellant (wife) for restitution of
conjugal rights.
2) Facts, in brief, to appreciate the controversy involved in the
appeals need mention infra.
3) The marriage between the appellant and the respondent was solemnized
on 26.02.1999 at Delhi as per the Hindu rites. The respondent-husband is
working as “Caretaker” in the Government of NCT of Delhi whereas the
appellant is a housewife. Out of this wedlock, one daughter was born on
15.06.2002 and the second daughter was born on 10.02.2006. Both daughters
are living with the appellant.
4) On 11.07.2010, the respondent (husband) filed a petition for
dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955
(hereinafter referred to as “The Act”) in the Family Courts, Rohini, Delhi
against the appellant (wife). The respondent sought decree for dissolution
of marriage essentially on the ground of “cruelty”.
5) In substance, the respondent, in his petition, pleaded 9 instances
which, according to him, constituted “cruelty” within the meaning of
Section 13(1)(i-a) of the Act entitling him to claim dissolution of
marriage against the appellant.
6) The first ground of cruelty was related to wife’s behavior on the
next day of marriage, i.e., 27.02.1999. It was alleged that the appellant
came out of the bedroom in night dress and that too late when the close
relatives of the respondent were sitting in the house. It was alleged that
she did not pay respect and wishes to the elders. (Para 9 of the plaint)
7) The second ground of cruelty was again about the appellant’s behavior
with the respondent on the eve of New Year. However, the year was not
mentioned. According to the respondent, he agreed to celebrate the new
year with the appellant on her parental house as the parents of the
appellant gave repeated calls. After reaching her parental house, most of
the time the appellant was busy with her family members and left him alone
in the drawing room. Even at the time of dinner, the family members of the
appellant did not behave properly. (Para 10).
8) The third ground of cruelty was that the appellant did not show any
inclination or enthusiasm to attend any important family function or
festivals at the respondent’s house whenever held. However, no details were
given about the date and the function held. The allegations are general in
nature (Para 11).
9) The fourth ground of cruelty was again about the indecent behavior of
the appellant towards the respondent’s family members. However, no details
were pleaded except making general averments (Para 12).
10) The fifth ground of cruelty was in relation to an incident which,
according to the respondent, occurred in July 1999. It was alleged that the
appellant, on that day, insisted that the couple should live separately
from the respondent’s parents (Para 13).
11) The sixth ground of cruelty was again general with no details. It was
alleged that the appellant was not interested in doing any household work
nor was interested in preparing meals and used to insist the respondent to
have his lunch from outside. (Para 14).
12) The seventh ground of cruelty was in relation to one incident which,
according to the respondent, occurred on Diwali day in the year 2000. It
was again about the behavior of the appellant with the family members of
the respondent which, according to the respondent, was rude (Para 16).
13) The eighth ground of cruelty was in relation to one isolated incident
which, according to the respondent, occurred on 15.04.2001. It was again
about the behavior of the appellant with the friends of the respondent who
had come to the respondent’s house. According to the respondent, the family
members did not like it (Para 17).
14) The ninth ground of cruelty was that one day in year 2010, the
appellant visited the respondent’s office and misbehaved with the
respondent in the presence of other officials (Para 27).
15) The respondent also alleged some instances in the petition. They,
however, again essentially relate to the appellant’s behaviour with the
respondent and his family members.
16) The appellant filed her written statement and denied these
allegations. The appellant also applied for restitution of conjugal rights
against the respondent in the same proceedings by filing petition under
Section 9 of the Act and inter alia alleged in her petition that it was the
respondent who has withdrawn from her company without there being a
reasonable cause. She also while denying the case set up by the respondent
justified her case for restitution of conjugal rights.
17) The Trial Court framed the following issues on the basis of pleadings
in the case:
Whether after solemnization of marriage, the Respondent has
treated the Petitioner with cruelty? OPP
Whether the Petitioner is entitled to the decree of
divorce as prayed? OPP
3. Relief

The following issues were framed based on the pleadings in the petition
under Section 9 of the Act:

Whether the Petitioner is entitled to the restitution of conjugal rights as
prayed? OPP
Relief

18) Parties adduced the evidence. By order dated 14.12.2012, the Family
Court allowed the petition filed by the respondent. It was held that the
grounds alleged by the respondent amounted to mental cruelty within the
meaning of Section 13(1)(ia) of the Act and the same having been proved by
the respondent, he was entitled to claim a decree for dissolution of
marriage against the appellant. Accordingly, the Trial Court granted decree
for dissolution of marriage in favour of the respondent and dissolved the
marriage. Since the decree for dissolution of marriage was passed against
the appellant, the petition filed by the appellant against the respondent
seeking restitution of conjugal rights was dismissed.
19) The appellant, felt aggrieved by the aforesaid order, filed first
appeals before the High Court. In appeals, the question was whether the
Trial Court was justified in granting decree for dissolution of marriage to
the respondent (husband) and, in consequence, was justified in dismissing
the petition for restitution of conjugal rights filed by the appellant
(wife).
20) By impugned judgment, the High Court dismissed the appeals and
affirmed the judgment/decree of the Trial Court. The appellant (wife), felt
aggrieved, has filed these appeals by special leave against the judgment of
the High Court.
21) Heard Mr. D.N. Goburdhan, learned counsel for the appellant and Mr.
Gaurav Goel, learned counsel for the respondent.
22) Having heard the learned counsel for the parties and on perusal of
the record of the case, we are inclined to allow the appeals and while
setting aside the impugned order, dismiss the divorce petition filed by the
respondent(husband) against the appellant and, in consequence, allow the
petition filed by the appellant(wife) for restitution of conjugal rights
against the respondent (husband).
23) The word “cruelty” used in Section 13(1)(ia) of the Act is not
defined under the Act. However, this expression was the subject matter of
interpretation in several cases of this Court. What amounts to “mental
cruelty” was succinctly explained by this Court (three Judge Bench) in
Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511]. Their Lordships speaking
through Justice Dalveer Bhandari observed that no uniform standard can ever
be laid down for guidance, yet it is appropriate to enumerate some
instances of human behavior which may be considered relevant in dealing
with the cases of “mental cruelty”.
24) Their Lordships then broadly enumerated 16 category of cases which
are considered relevant while examining the question as to whether the
facts alleged and proved constitute “mental cruelty” so as to attract the
provisions of Section 13 (1) (ia) of the Act for granting decree of
divorce.
25) Keeping in view the law laid down in Samar Ghosh’s case (supra), when
we examine the grounds taken by the respondent in his petition for proving
the mental cruelty for grant of divorce against the appellant, we find that
none of the grounds satisfies either individually or collectively the test
laid down in Samar Ghosh’s case (supra) so as to entitle the respondent to
claim a decree of divorce.
26) This we hold for more than one reason. First, almost all the grounds
taken by the respondent in his petition were stale or/and isolated and did
not subsist to enable the respondent to seek a decree for dissolution of
marriage. In other words, the incidents of cruelty alleged had taken place
even, according to the respondent, immediately after marriage. They were
solitary incidents relating to the behavior of the appellant. Second,
assuming that one or more grounds constituted an act of cruelty, yet we
find that the acts complained of were condoned by the parties due to their
subsequent conduct inasmuch as admittedly both lived together till 2006 and
the appellant gave birth to their second daughter in 2006. Third, most of
the incidents of alleged cruelty pertained to the period prior to 2006 and
some were alleged to have occurred after 2006. Those pertained to period
after 2006 were founded on general allegations with no details pleaded such
as when such incident occurred (year, month, date etc.), what was its
background, who witnessed, what the appellant actually said etc.
27) In our view, the incidents which occurred prior to 2006 could not be
relied on to prove the instances of cruelty because they were deemed to
have been condoned by the acts of the parties. So far as the instances
alleged after 2006 were concerned, they being isolated instances, did not
constitute an act of cruelty.
28) A petition seeking divorce on some isolated incidents alleged to have
occurred 8-10 years prior to filing of the date of petition cannot furnish
a subsisting cause of action to seek divorce after 10 years or so of
occurrence of such incidents. The incidents alleged should be of recurring
nature or continuing one and they should be in near proximity with the
filing of the petition.
29) Few isolated incidents of long past and that too found to have been
condoned due to compromising behavior of the parties cannot constitute an
act of cruelty within the meaning of Section 13 (1)(ia)of the Act.
30) In our considered opinion, both the Courts below failed to take note
of this material aspect of the case and thus committed jurisdictional error
in passing a decree for dissolution of marriage.
31) We cannot, therefore, countenance the approach of the High Court
because it did not, in the first instance, examine the grounds taken in the
petition to find out as to whether such grounds constitute mental cruelty
or not? The finding, therefore, though concurrent does not bind this
Court.
32) We are not impressed by the submission of the learned counsel for the
respondent that an incident which occurred somewhere in 2010 when the
appellant visited the office of the respondent and alleged to have
misbehaved with the respondent in front of other officers would constitute
an act of cruelty on the part of the appellant so as to enable the
respondent to claim divorce. In the first place, no decree for divorce on
one isolated incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to
constitute an act of cruelty unless it is further supported by some
incidents of alike nature. It was not so.
33) We are also not impressed by the submission of the learned counsel
for the respondent that since the appellant had made allegation against the
respondent of his having extra-marital relation and hence such allegation
would also constitute an act of cruelty on the part of the appellant
entitling the respondent to claim decree for dissolution of marriage.
34) Similarly, we are also not impressed by the submission of learned
counsel for the respondent that since both have been living separately for
quite some time and hence this may be considered a good ground to give
divorce.
35) In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the grounds of cruelty
taken by the respondent in his petition does not include these grounds.
Third, even if some stray allegations were made by the wife in her
pleading/evidence as were relied upon by the learned counsel are of no
relevance because, as mentioned above, these ground were not pleaded in the
petition by the respondent for seeking a decree of divorce and nor were put
in issue; and lastly, the burden being on the respondent, the same could be
discharged by the respondent by pleading and then proving. It was not so
done. It is for these reasons, we cannot accept the aforementioned two
submissions for affirming the decree of divorce.
36) This takes us to the next question as to whether the appellant was
able to make out any case for restitution of conjugal rights against the
respondent.
37) Having perused her petition and evidence, we are of the view that the
appellant is entitled for a decree for restitution of conjugal rights
against the respondent.
38) In our considered view, as it appears to us from perusal of the
evidence that it is the respondent who withdrew from the appellant’s
company without there being any reasonable cause to do so. Now that we have
held on facts that the respondent failed to make out any case of cruelty
against the appellant, it is clear to us that it was the respondent who
withdrew from the company of the appellant without reasonable cause and not
the vice versa.
39) In view of foregoing discussion, the appeals succeed and are allowed.
The impugned judgment is set aside. As a result, the petition filed by the
respondent (husband) under Section 13(1) of the Act seeking dissolution of
marriage is dismissed. As a consequence thereof, the marriage between the
parties is held to subsist whereas the petition filed by the appellant
against the respondent under Section 9 of the Act seeking restitution of
conjugal right is allowed. A decree for restitution of conjugal right is,
accordingly, passed against the respondent.
40) We hope and trust that the parties would now realize their duties and
obligations against each other as also would realize their joint
obligations as mother and father towards their grown up daughters. Both
should, therefore, give quite burial to their past deeds/acts and bitter
experiences and start living together and see that their daughters are well
settled in their respective lives. Such reunion, we feel, would be in the
interest of all family members in the long run and will bring peace,
harmony and happiness. We find that the respondent is working as a
“Caretaker” in the Government Department (see Para 4 of his petition). He
must, therefore, be the “Caretaker” of his own family that being his first
obligation and at the same time attend to his Government duties to maintain
his family.

……………………………………..J.
[R.K. AGRAWAL]

….………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;
March 08, 2017
———————–
18

Judgement

Whether consent Can be withdrawn in Mutual Consent Divorce under Sec.13-B of HMA ?

In the opinion of the single judge of Delhi High Court, the following questions of law arise for consideration by a division bench of this Court :-

A) Whether a party, which has under a settlement agreement decreed by

a Court undertaken to file a petition under Section 13B(1) or a motion

under Section 13B(2) of the Act, 1955 or both and has also undertaken to

appear before the said Court for obtaining divorce can be held liable for

contempt, if the said party fails to file or appear in the petition or motion or

both to obtain divorce in view of the option to reconsider/renege the

decision of taking divorce by mutual consent under Section 13B(2) of the

Act?

B) Whether by undertaking before a Court to file a second motion under

Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an

undertaking to a Court to that effect in a separate court proceeding, a party

waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes,

whether such right can be waived by a party under Section 13B(2) of the

Act, 1955?

C) Whether any guidelines are required to be followed by the Court

while recording the undertaking/agreement of the parties with respect to a

petition under Section 13B(1) or a motion under Section 13B(2) of the Act,

1955 or both for obtaining divorce?

D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia

(supra) are good law in view of the doubts expressed by this Court in paras

19 to 28 and in view of the Division Bench judgment in Dinesh Gulati

CITATION

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.M. APPL. 8610/2015 in CONT.CAS(C) 772/2013

RAJAT GUPTA ….. Petitioner

Through Mr. Prashant Mendiratta with

Ms. Poonam Mehndiratta and

Mr. Harshwardhan Pandey,

Advocates

versus

RUPALI GUPTA ….. Respondent

Through Mr. Ankur Mahindro with

Mr. Shresth Choudhary,

Ms. Megha Agarwal, Ms. Devna,

Mr. Adhirath and Mr. Aarzoo Aneja,

Advocates

WITH

+ CONT.CAS(C) 584/2014

KAMAL GODWANI ….. Petitioner

Through Mr. F.K. Jha with Mr. Sarvesh,

Advocates

versus

ANNU BHARTI ….. Respondent

Through Mr. B.K. Srivastava and Mr.Rajeev

Katyain, Advocates.

AND

+ CONT.CAS(C) 483/2016 & C.M. APPLS. 15724/2016, 28622/2016,

42418/2016

W CDR SITANSHU SINHA ….. Petitioner

Through Mr.Ashish Virmani with Ms.Paridhi

Dixit, Advocates.

versus

Cont. Cas.(C) 772/2013 & Ors. Page 2 of 29

PRACHI SINGH @ PRACHI SINHA ….. Respondent

Through Mr.Ajit Kumar with Ms.Nutan

Kumari, Advocates.

AND

+ CONT.CAS(C) 484/2016 & C.M. APPLS. 15728/2016, 42419/2016

WG CDR SITANSHU SINHA ….. Petitioner

Through Mr.Ashish Virmani with Ms.Paridhi

Dixit, Advocates.

versus

PRACHI SINGH @ PRACHI SINHA ….. Respondent

Through Mr.Ajit Kumar with Ms.Nutan

Kumari, Advocates.

AND

+ CONT.CAS(C) 648/2014

  1. ARUN SHARMA ….. Petitioner

Through Mr.Sunil Mittal, Sr.Advocate with

Ms.Seema Seth and Mr.Dhruv

Grover, Advocates.

versus

POOJA SHARMA ….. Respondent

Through Mr. Prashant Mendiratta with

Ms. Poonam Mehndiratta and

Mr. Harshwardhan Pandey,

Advocates

AND

+ CONT.CAS(C) 1116/2016

AMRITA KAUR SAXENA ….. Petitioner

Through Mr.Amit Grover, Advocate.

Cont. Cas.(C) 772/2013 & Ors. Page 3 of 29

versus

GAURAV SAXENA ….. Respondent

Through Ms.Mrinalini Khatri, Advocate.

AND

+ CONT.CAS(C) 1147/2016

NAVEEN KUMAR JAIN ….. Petitioner

Through Mr.C.Rajaram with Mr.Sashi Panwar

and Mr.T.Kanniappan, Advocates.

versus

INDU JAIN ….. Respondent

Through Mr. Parvinder Chauhan, Advocate

with Mr. Nitin Jain, Advocate.

AND

+ CONT.CAS(C) 1251/2016

VIKAS SHARMA ….. Petitioner

Through Mr.Atul Kharbanda, Advocate.

versus

SHALINI CHHABRA ….. Respondent

Through Mr.Jitendra Kumar Jha with

Mr.Rupam Roy, Advocates.

AND

+ CONT.CAS(C) 484/2014

DEEPAK BATRA ….. Petitioner

Through Mr.Akhilesh Aggarwal, Advocate.

Cont. Cas.(C) 772/2013 & Ors. Page 4 of 29

versus

SWATI BATRA ….. Respondent

Through

% Date of Decision: 09th January, 2017

 

 

Wife’s Capability To Earn No Reason To Reduce Maintenance Awarded To Her…

“That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.”


IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 125-126 of 2017

(Special Leave Petition (Crl.) No(s). 6025-6026/2013)

SHAILJA & ANR. Appellant(s)

VERSUS

KHOBBANNA Respondent(s)

O R D E R Leave granted.

The matters have been called out twice but there is no appearance on behalf of the respondent.

We have gone through the impugned judgment and order dated 17.04.2013 passed by the High Court and order dated 22.11.2012 passed by the Family Court.

The Family Court had directed payment of maintenance for an amount of Rs.15,000/- per month to the appellant – wife and Rs.10,000/- per month to the son.

The High Court while considering the correctness of the order passed by the Family Court did not accept the contention of the respondent – husband that the appellant – wife was working. All that was held was that the appellant – wife was capable of earning and therefore maintenance was reduced to an amount of Rs.6000/- from Rs.15,000/- for her and Rs.6000/- from Rs.10,000/- for the son

. In other words, out of an amount of Rs.25,000/- (total) awarded by the Family Court for the appellant No.1 and the son, 1 the High Court has reduced the amount to Rs.12,000/- (total).

We are not satisfied with the order passed by the High Court considering the income of the respondent – husband, which we have been told, is more than Rs.80,000/- per month since the respondent – husband is a Senior Lecturer in a college. It is stated by learned counsel for the appellants that the respondent – husband is also the owner of 26 acres of irrigated land.

That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.

Under the circumstances, we set aside the order passed by the High Court and restore the order passed by the Family Court.

It appears that the son has now attained the age of majority. If that is so, the son will be entitled to maintenance only till the age of reaching majority.

Subject to the above, the order passed by the Family Court is affirmed.

2 The appeals are accordingly allowed. ………………….

.J. [MADAN B. LOKUR] …………………..J.

[PRAFULLA C. PANT]

NEW DELHI; JANUARY 18, 2017.