Monthly Archives: May 2021

waiving of Statutory or Mandatory period of six months under Section 13B(2) of the Hindu Marriage Act 1955 for Dissolution of Marriage by way of Mutual Consent.

What is Law :

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 solemnised 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 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised 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.]

(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.

(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

In the matter of : Harjinder Singh vs Rajpal in Civil Appeal No.452/2018, The Hon’ble Supreme Court held that :-

The parties have also filed a petition under Section 13(B) of the Hindu Marriage Act, 1955 seeking decree of divorce by mutual consent. The parties are before us and we have interacted with them. Having regard to the fact that the parties have been litigating and living separately for around two decades, we are convinced that the parties have taken a free and conscious decision. In the background of the long separation and the long pending litigation, we are of the view that the further period of waiting should dispensed with. Ordered accordingly.

In the Matter of J.S.V vs V.P.G. in C.M.(M) No.684/2019, The Hon’ble Delhi High Court held that :-

“8. This provision has been interpreted in the judgment in Amardeep Singh (supra), upon which reliance has been placed by Mr. Jitender Singh. After considering earlier authorities on the subject, the Supreme Court has observed as follows:-

“17. 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 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 ther are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

18. 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 v. Nanhku as follows: (SCC pp. 496-97, para 34) “34….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 oftquoted 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 the 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.”(pp. 339-40)

19. 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 13-B(2), it can do so after considering the following:

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

(ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

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

(iv) the waiting period will only prolong their agony. 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 court concerned.

20. Since we are of the view that the period mentioned in Section 13-B(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.”

9. The Family Court has interpreted paragraph 19(i) of the aforesaid judgment, to hold that the statutory period of 6 months can be waived, only if the first motion itself has been filed after the expiry of 18 months from the date when the parties had started living separately. However, this interpretation appears to me to be an unduly literal interpretation, which may in a given case, such as the present one, have the consequence of nullifying the purposive interpretation preferred by the Supreme Court. A holistic reading of the Court’s judgment leads instead to the conclusion that purposeless marriage which has no chance of reunion ought not to be prolonged.

10. The safeguards contained in the statue (including, inter alia, the period of one year between the separation of the parties and the first motion, and the period of six months between the first motion and the second motion) are intended to explore every avenue of reconciliation and avoid an impulsive decision to break a marriage. In the present case, there does not appear to be any likelihood of such reconciliation. The parties have lived separately since 25.10.2017 and the composite period of 18 months expired on 25.04.2019. The petitioner has also expressed her intention to enter into another marriage with a non-resident Indian, who is resident in Australia. Mr. Jitender Singh submits that, although the marriage had been fixed for 02.05.2019, it could not be solemnized on that date due to the fact that the present divorce proceedings had not concluded. However, it is submitted that the prospective bride-groom is in India until 10.05.2019, and the insistence on completion of the waiting period of 6 months would only prolong the petitioner’s agony, contrary to the dictum of the Supreme Court in paragraph 19(iv) of the judgment. The parties have also attempted mediation and, in fact, the decision to dissolve their marriage was reached through a mediated settlement. The mandatory period of 6 months would also be over on 22.05.2019. Therefore, what is being sought in this petition is a waiver of about 15 days. The Supreme Court has clearly held that the period mentioned in Section 13B (2) is not mandatory but directory, and that a Court may exercise this discretion in the facts and circumstances of each case, when there is no possibility of the parties to resume cohabitation and there are chances of alternative rehabilitation. In the facts and circumstances of the present case, therefore, the petitioner’s application for wavier of the mandatory period of 6 months ought to have been allowed.

11. The petition is therefore allowed. The order dated 01.05.2019 passed by the Family Court is, set aside and the application filed by the parties herein for waiving of the period of 6 months under Section 13B (2) is allowed. The second motion application pending before the Family Court shall be listed before the concerned Court on 09.05.2019.

Dissolution of Marriage on Grounds of idiocy or lunacy under Hindu marriage Act 1955.

 In the matter of : Om Prakash Gupta vs Puspa Kumari, citations: ILR 1969 Delhi 953, The Hon’ble Delhi High Court held that:-

What  is the meaning of “an idiot” ?

In section 5(ii) of the Hindu Marriage Act, 1955 (hereinafter called the Act) and how to determine whether a person is such an idito on the medical and other evidence in this case-are the two important questions for decision in this appeal by the husband whose petition under section 12(1)(b) of the Act for a decree of nullity against the respondent wife has been dismissed by the learned lower Court on the ground that the husband has failed to prove that wife, at the time of the marriage, was “an idiot”.

(2) The two provisions of the Act to be considered are : Section 5(ii) :

“Amarriage may be solemnized between any two Hindus, if the following conditions are fulfillled, namely :

 (I)..

 (II)neither party is an idito or a lunatic at the time of the marriage.”

AND section 12(1) (b) :

12.(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :

 (a)..

(B)That the marriage is in contravention of the condition sepeified in clause (ii) of section 5.”

 (3) The key to the interpretation of Sections 5(ii) and 12(1)(b) will be found in the long title of the Act which is as follows :    “ANAct to amend and codify the law relating to marriage among Hindus”. 

 (4) The Act thus partly embodies the existing Hindu Law and partly amends it. In 1955, the Legislature, therefore, in making this Act, drew upon two distinct sources, namely :    

 (A)the then existing Hindu Law and  

 (B)the English Common Law as modified by statutes.  

(5) The concept of idiocy and/or lunacy as a ground of incapacity was nto unknown to Hindu Law. Idiocy was a ground of disqualification of a person from inheritance. In R. Muthammal v. S. Devasthanam (1) paragraphs 9 and 10, one Ramasami Pillai was held to be insane being a “gloomy and sickly person with a vacant look” and unable to answer “even the simple question about his name. On the evidence, the attempted distinction between a lunatic and a person of week intellect could nto be sustained in that case. The Supreme Court apparently based its finding of lunacy on the complete loss of reason and intellect.

(6) Persons of unsound mind, i.e. idiots and lunatics, though disqualified for civil purposes generally, were nto declared incompetant to marry under the ancident Hindu Law. But such marriages were reprehensible. The late Sir Gurudas Banerjee in his Tagore Law Lectures on Marriage and Stridhan, therefore, expressed the view that “an idito and a lunatic being, where the loss of reason is complete, incompetent to accept the gift of the bride which is a necessary part of the ceremony of marriage, it is nto easy to understand how their marriage in such cases can be regarded as marriage at all”. (Fifth Edition, page 41). In Mouji Lal v. Chandrabati Kumari (2), the Privy Council did nto consider the question whether unsoundness of mind could in any circumstances, invalidate a Hindu marriage. Acting, however, on the hypothesis that it might, they pointed out that the degree of unsoundness would always have to be considered and in the particular cases berore them the man whose marriage was in question was nto so insane that he could nto understand the ceremonies of the marriage and, therefore, that particular marriage was nto invalid. The observations of the Privy Council were followed and Gurudas Banerjee’s view cited above was approved by the Federal Court in R. N. Singh v. Bhagwati Saran Singh (3) paragraphs 94 and 153 to 155. The following observation of B. K. Mukherjee J. is particularly instructive : “THEREare undoubtedly various degrees of insanity and the fact that a man has been adjudicated a lunatic may mean and imply that he is nto competent to manage his own affairs, but it does nto necessarily show that he suffers from complete mental aberration. He may have sufficient amount of reason still left in him which would enable him to understand the ceremonies of marriage”.

(7) There is a presumption that the Legislature does nto intend to change the law unless a statute clearly says so. It would be fair, therefore, to conclude that the words “idiot” and “lunatic” in section 5(ii) of the Act were used to indicate the total loss of reason or the last degree of mental disorder which alone would incapacitate a person from marriage inasmuch as this was the state of Hindu Law in 1955 when the Act came on the statute book.

(8) The concept of nullity of marriage was unknown to Hindu Law before the amendment made by sections 11 and 12 read with section 5 of the Act. Section 19 of the Indian Divorce Act, 1869, however, already existed on the Indian statute book outside the Hindu Law. It was in pari materia to sections 11 and 12 read (9) In its turn section 19 of the Indian Divorce Act, 1869, derived the meaning of the word “idiot” from the English Common Law on which it was based. As shown by section 22 of the Matrimonial Causes Act, 1857, the’ Courts were to give relief of nullity of marriage on the same principles and rules on which the Ecclesiastical Court had done so before. Historically and prior to the Reformation, marriage in England was also regarded by the Church as a sacrament which could nto be dissolved by a decree of divorce avinculo mafrimonii. This doctrine of indissolubility came to be evaded in course of time by the evolution of decree annulling the marriage on the ground that due to the lack of certain essential conditions, the marriage itself could nto be validly performed. One such condition was the mental capacity of a party to the marriage. When a party was unable to consent to the marriage because of mental incapacity, there could be no marriage at all and the marriage which might have been gone through was void ipso jure. In Durham (5) , Sir James Hannen (President) said that the contract of marriage is a very simple one which does nto require a high degree of intelligence to comprehend.” In Marrod v. Harrod (6) a dumb and deaf lady of extremely dull intellect who could nto comprehend anything, could nto read or write, was never allowed to leave her home alone and Was unable to tell the value of money or how to give change, was still held to be capable of marriage. In Park v. Park (7) upheld in appeal in 1954 Probate Division 112, the marriage of a 78 year old man was held to be vaild though his mind had been found to be impaired after a stroke and hardening of the arteries and was incapable of full recovery, but was capable of understanding what marriage was.

(10) The definition of “an idiot” given in Stroud’s Judicial Dictionary, Third Edition, Volume 2, page 1357, based on old decisions is as follows :

“IDIOT”is he that is a focl natural from his birth, and knoweth nto how to account or number twenty pence, or cannto name his father or mother, nor of what age himself is, or such like easie and common matters”.

“IDIOTS”were defined in the Menial Deficiency Act, 1913 as “persons so defective in mind from birth or from an early age as to be unabie to guard themselves against common physical dangers”. Under the Marriage of Lunatics Act, 1811, a person who has been found to be of insane mind by inquisition was disqualified from marriage. But a person nto so found by inquisition was nto disqualified if at the time of the marriage he or she was capable of understanding the nature of the contract and the duties and responsibilities thereby created, and was free from the influence of insane delusions on the subject. (19, Halsbury’s Laws of England 780, para 1250, Rayden on Divorce, Tenth Edition 101 and Tolstoy on the law and Practice of Divorce, Fifth Edition 109).

in this case to consider whether idiocy or lunacy constituting incapacity to marry and leading to a decree of nullity is capable of being distinguished from “unsoundness of mind” which may lead to judicial separation under section 10(1)(e) of the Act or to divorce under section 13(1)(iii) of the Act inasmuch as a different expression “unsound mind” has been used therein and the remedies of judicial separation and divorce are also different from the remedy of nullity. Remedy of nullity of marriage is based on incapacity to marry while the true purpose of divorce or judicial separation is to protect and relieve a spouse from misery or malaise as the outcome of cruelty or hardship. Nor are we concerned here with the meaning of the words “incurably of unsound mind” as being a ground for divorce in section l(i) (d) of the Matrimonial Causes Act, 1950, dealt with in Whysall v. Whysall (9) Chapman v. Chapman and Robinson v. Robinson . The test adopted therein is whether a person could manage himself and his own affairs. A similar test would appear to have been adopted in section 38 of the Indian Lunacy Act, 1912. But the purpose of the Lunacy Act, 1912 as also of the English Mental Health Act, 1959, is the care and protction of a person of unsound mind. Unsoundness of mind is a general expression in which various degrees of mental derangement may be comprised. For the treatment of mental illness the legal definitions of idoicy or lunacy would nto be sufficient. Therefore, as observed in Taylor op cit, (page 433), in. section 4(2) of the Mental Health Act, 1959, a new concept of “severe subnormality” has been adopted to include different degrees of unsound mind, e.g. “idiots” “imbeciles” and the lower grades of the “feeble minded” while the concept of “subnormality” in section 4(3) thereof includes the majority of the “feeble minded”. This shows that for the medical purposes, the approach to the subject of unsoundness of mind is likely to be different from the approach for the purposes of law. Unsoundness of mind may become relevant even for the purposes of law in different contexts such as responsibility for cirminal act (section 84 of the Indian and Code based on the McNaghten Rules) entering into ordinary contracts (saction 12 of the Contract Act) and mangement of property (Lunancy Act). It would nto perhaps be possible to regard unsoundness of mind for all these purposes to be the same thing. Even in the Law of -Marriage, the Hindu Marriage Act, 1955, has used different expressions indicating mental abnormality as a ground for nullity due to incapacity to marry on the one hand and as a ground for judicial separation or divorce on the other hand. Two rules of statutory construction may be borne in mind in this connection. Firstly, expressions used in different statutes which are nto in pari materia do nto necessarily mean the same thing. Secondly, different expressions used in the same statute are nto ordinarily meant to convey the same meaning.

(24) As instances in which the above-mentioned rules of statutory construction do nto seem to have been taken into account, reference may be made to two recent decisions, one dealing with idiocy, namely, Ajitrai v. Bai Vasumati (12) and the other dealing with lunacy, namely, Anima Roy v. Probodh Mohan Roy It is nto necessary however to consider in the present case, whether a part of the reasoning in these two decisions is vulnerable due to this lacuna.

(25) As the evidence in the present case does nto indicate want of rational conduct on the part of the wife, she cannto be regarded as having been an idito at the time of the marriage. The petition for annulment of the marriage was, therefore, rightly dismissed by the learned lower Court. In view of the further consideration given to the question by me above, the appeal is also dismissed with costs.