Statutory Period of six months can be waived in Mutual Consent divorce By Supreme Court of India,

 

Statutory Period of six months can waived in Mutual Consent divorce By Supreme Court of India,    

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Divorce by mutual consent is the fastest way or procedure of getting divorce in India. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce under mutual consent, it is necessary for the husband and wife to have lived separately for at least a year. Divorce by mutual consent is fastest because parties can get divorce in six months only and can be shortened if the parties are living separately since long time spam. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under under following Acts which very according to law applicable to parties:-

Sec. 13-B of The Hindu Marriage Act.

Sec. 28 of The Special Marriage Act.

Sec.10-A of The Indian Divorce Act.

The procedure for seeking a divorce by mutual consent is same under each Act, which is initiated by filing a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners present in Court, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required to reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, before filling petition are custody of child, alimony to wife, return of dowry items or “Istreedhan” and litigation expenses which should be mentioned in their petition for divorce by mutual consent,.

However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an inquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties

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 In The Matter of Amardeep Singh   Vs    Harveen Kaur     the Hon’ble Supreme Court held that:-                               …

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:

  1. i)     How long parties have been married?
  2. 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?

14 AIR 2010 Ker 157

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.

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.

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.

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.”

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 :

  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.

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

. 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.

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.

. 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.
The parties are now at liberty to move the concerned court for fresh consideration in the light of this order.

 

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

 

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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;

 

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.)