142- Shaveta Gargwaiving Time Period

8/3/2019 142- Shaveta Gargwaiving Time Period

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C.R. No. 794 of 2009 1

In the High Court for the States of Punjab and Haryana at Chandigarh

C.R. No. 794 of 2009

Date of decision: March 3,2009

Shaveta Garg ..Petitioner

Versus

Rajat Goyal ..Co-petitioner

Coram: Hon'ble Mr.Justice Rakesh Kumar Garg

Present: Mr.Akshay Bhan, Advocatefor the Petitioner.Mr. Sameer Rathore, Advocatefor Mr. Sumeet Goel, Advocatefor the co-petitioner

...

Rakesh Kumar Garg,J.

By way of this revision petition, the petitioner has challenged the

order dated 21.1.2009 passed by the District Judge, Chandigarh vide which the

application moved by the petitioner for waiving/condoning the statutory period of

six months for grant of mutual divorce as fixed under Section 13-B(2) of the

Hindu Marriage Act, 1955 (for short the Act) has been declined.

As per the averments made in the petition, the marriage between the

parties took place on 4.12.2005 as per Hindu Rites and Ceremonies. Later on

due to indifference in thinking and different attitude, the parties could not adjust

with each other and started living separately since 27.7.2006. Every sincere

effort by the parties to abridge the gap yielded no results and the marriage

exists only on papers and the same is factually and emotionally dead for all

intents and purposes. The respondent-husband sought divorce by filing a

petition under Section 13 of the Act. It has been further averred in the petition

that during the pendency of the aforesaid petition owing to the good offices of

relations and respectable, parties arrived at a mutual settlement to get the

marriage dissolved under Section 13-B of the Act by mutual consent. This


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C.R. No. 794 of 2009 2

conscious decision was taken by the parties of their own free will and volition

after thorough deliberations without any undue pressure and coercion from any

quarters. The respondent-husband sought amendment in application for

correcting the divorce petition into a petition for divorce by mutual consent.

Both the parties filed a joint petition under Section 13-B of the Act for

dissolution of marriage on 16.12.2008 before the District Judge, Chandigarh.

Statements of the parties were recorded on 20.12.2008 wherein they stated that

they could not live together due to different temperaments and have been

residing separately since 27.7.2006. They also stated that their marriage has

broken and they have decided to get it dissolved by way of mutual consent and

they are making the statements without any influence or pressure. The parties

also moved an application for condonation/ waiving of statutory period of six

months as provided under Section 13-B(2) of the Act pleading that they are

young and have taken a conscious decision of divorce after thorough

deliberations. It was also pleadd that the respondent- husband has undertaken

to pay Rs. 1.40 Crores to the petitioner-wife and they are of the age group of 29

years and 28 years and no purpose will be served to keep the matter pending for

another six months and it was submitted that since they are of marriageable age,

their marriage be dissolved by condoning the statutory period of six months.

The District Judge, Chandigarh vide impugned order dated

21.1.2009 dismissed the aforesaid application holding that statutory period of six

months cannot be waived in view of the judgment of this Court in Charanjit Singh

Mann Versus Neelam Mann AIR 2006 Punjab and Haryana 201.

Challenging the impugned order, learned counsel for the petitioner

has vehemently argued that the trial Court has failed to consider that both the

parties are living separately since 27.7.2006 and are well educated and mature

enough to understand what is good for them. Both the parties are of

marriageable age and no purpose will be served to adjourn the proceedings for

another six months. Learned counsel for the petitioner has further argued that

the court below has failed to consider the fact that statutory period of six months


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C.R. No. 794 of 2009 3

has been waived off in various Single Bench as well as Division Bench

Judgments passed by this Court and the judgment in Charanjit Singh Manns

case (supra) has been wrongly relied upon by the court below as the operation

of the said judgment has been stayed by the Honble Supreme Court in Special

Leave to Appeal(Civil) No. 9346 of 2006 dated 25.1.2007.

Learned counsel for the petitioner has also relied upon a Division

Bench judgment of this court in the case of Jawan Versus Mewa Singh 2001(3)

RCR (Civil) 343 to contend that the moment, operation of judgment is stayed,

the ratio of law as laid down by the judgment of the Division Bench cited in

Charanjit Singh Manns case(supra) became non-est. The learned counsel also

placed reliance upon the judgments of this Court which are as follows:-

(i) Vinod Kumar Versus Kamlesh 2001(4) R.C.R.(Civil) 93,

(ii) Anita Sharma and Harish Kumar Sharma Versus NIL 2006(1) HLR 178.

(iii) Payal Gupta Versus Kunal Gupta 2006(2) HLR 4,

(iv)Sunil Kumar Versus Jyoti 2006(1) HLR 638,

(v) Satinder Kumar Versus Sunita 2006(1) HLR 573,

(vi) Surjit Singh Versus Jagir Kaur alias Harpreet Kaur 2006(1) HLR 120,

(vii) Jaswinder Kaur Versus Suresh Kumar 2006(3) RCR (Civil) 430(D.B.),

(viii) Amarjit Kaur Versus Bhupinder Singh 2007(1) HLR 461

(ix) Dr. Arun Gupta Versus Dr. (Mrs.)Rita Gupta 2008(1) Marriage Law Journal

131. and

(x) Vijay Kumar Versus Smt. Surinder Kaur alias Sunita 2008(1) Marriage Law

Journal 69.

In the end, earned counsel has argued that the impugned order is

liable to be set aside. Learned counsel has further prayed that the revision

petition be allowed and the impugned order be set aside and further direction be

issued to the trial Court to proceed with the matter after waiving of the statutory

period of six months as fixed under Section 13-B(2) of the Act.

I have also heard learned counsel for the co-petitioner-husband

who has admitted that there was no coercion, intimidation or, undue influence on


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C.R. No. 794 of 2009 4

the parties for getting the divorce. He has also stated that since 27.7.2006, the

parties are living separately and the co-petitioner/ husband had filed a petition

for divorce under Section 13 of the Hindu Marriage Act for divorce. Since the

efforts made by the parties to reconciliation yielded no results, the parties have

arrived at a mutual settlement to get the marriage dissolved under Section 13-B

of the Act by mutual consent and the co-petitioner/ husband moved an

application under Order 6 Rule 17 CPC for converting the petitioner of divorce

under Section 13-B of the Act and moved joint petition for divorce by way of

mutual consent on 16.12.2008 after taking conscious decision as both of them

are very young and there is every possibility of rehabilitation of both the spouses

in near future. In the end, learned counsel for the respondent has also prayed for

waiving of the statutory period of six months and to dissolve the marriage by way

of mutual consent.

The question whether the matrimonial court is competent to waive

of the minimum waiting period of six months prescribed in sub section (2) of

Section 13-B of the Act came up for consideration before the Division Bench of

this Court in the case of Charanjit Singh Mann's case(supra). The Division

Bench after relying upon a judgment of the Hon'ble Supreme Court in Sureshta

Devi Versus Om Parkash, AIR 1992 SC 1904 held that the waiting period of six

months as provided under Section 13-B(2) is mandatory and cannot be waived

of. It is pertinent to mention here that while deciding the aforesaid case, the

Hon'ble Division Bench had taken note of various judgments passed by this

Court wherein the aforesaid period of six months was condoned. However, all

these judgments/orders were ignored by observing that the same were passed

on the statements and concessions made by both the parties and the scope or

interpretation of Section 13-B(2) of the Act was neither raised nor adjudicated

upon. It is also relevant to mention that question before the Hon'ble Apex Court

in Sureshta Devi's case(supra) was whether it is open to one of the parties at

any time till the decree of divorce is passed, to withdraw the consent given for

divorce by way of mutual consent and while answering this question, the Hon'ble


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C.R. No. 794 of 2009 5

Apex Court observed that the purpose of this waiting period is to give an

opportunity to the parties to reflect on their move and seek advice from relations

and friends. In this transitional period, one of the parties may have a second

thought and change the mind not to proceed with the petition and held that in a

petition for divorce by way of mutual consent under Section 13-B of the Act a

spouse can unilaterally withdraw the consent and the consent once given is not

irrevocable. Relevant observations of the Hon'bls Supreme Court are as follows:-

From the analysis of the Section, it will be apparent that the filing

of the petition with mutual consent does not authorize the court to

make a decree for divorce. There is a period of waiting from 6 yo

18 months. This interregnum was obviously intended to give time

and opportunity to the parties to reflect on their move and seek

advice from relations and friends. In this transitional period, one of

the parties may have a second thought and change the mind not to

proceed with the petition. The spouse may not be a party to the

joint motion under sub-section (2). There is nothing in the Section

which prevents such course. The Section does not provide that if

there is a change of mind it should not be by one party alone, but

by both. The High courts of Bombay and Delhi have proceeded on

the ground that the crucial time for giving mutual consent for

divorce is the time of filing the petition and not the time when they

subsequently move for divorce decree. This approach appears to

be untenable. At the time of the petition by mutual consent, the

parties are not unaware that their petition does not by itself snap

martial ties. They know that they have to take a further step to

snap marital ties. Sub-Section (2) of Section 13-B is clear on this

point. It provides that on the motion of both the parties...if the

petition is not withdrawn in the meantime, the Court shall....pass a

decree of divorce.What is significant in this provision is that there

should also be mutual consent when they move the court with a


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C.R. No. 794 of 2009 6

request to pass a decree of divorce. Secondly, the Court shall be

satisfied about the bona fides and the consent of the parties. If

there is no mutual consent at the time of the inquiry, the Court gets

no jurisdiction to make a decree for divorce. If the view is

otherwise, the Court could make an inquiry and pass a divorce

decree even at the instance of one of the parties and against the

consent of the other. Such a decree cannot be regarded as decree

by mutual consent.

Sub-section (2) requires the Court to hear the parties which

means both the parties. If one of the parties at that stage says that

I have withdrawn my consent, or I am not a willing party to the

divorce, the Court cannot pass a decree of divorce by mutual

consent. 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 and consent for divorce. Mutual consent to the divorce is

a sine qua non for passing a decree for divorce under Section 13-

B. Mutual consent should continue till the divorce decree is passed.

It is a positive requirement for the Court to pass a decree of

divorce. The consent must continue to decree nisi and must be

valid subsisting consent when the case is heard.

It is also relevant to mention at this stage that in Ashok Hurra

Versus Rupta Bipin Zaveri AIR 1997 (SC) 1266, the Hon'ble Supreme Court

after noticing Sureshta Devi's case observed that the judgment in Sureshta

Devi's case would require reconsideration in an appropriate case. The relevant

observations are as under:-

We are of opinion that in the light of the fact situation present in

this case, the conduct of the parties, the admissions made by the

parties in the joint petition filed in Court, and the offer made by

appellant's counsel for settlement, which appears to be bona fide,

and the conclusion reached by us on an overall view of the matter,


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C.R. No. 794 of 2009 7

it may not be necessary to deal with the rival pleas urged by the

parties regarding the scope of Section 13B of the Act and the

correctness or otherwise of the earlier decision of this Court in

Sureshta Devi's case(supra) or the various High Court decisions

brought to our notice, in detail. However, with great respect to the

learned Judges who rendered the decision in Sureshta Devi's case

(supra), certain observations therein seem to be very wide and may

require reconsideration in an appropriate case.

Thus the question whether six months waiting period as provided

under Section 13-B(2) of the Act can be waived on the concession of both the

parties was not before the Hon'ble Supreme Court.

It is also important to mention that the Hon'ble Supreme Court has

stayed operation of the judgment of the Division Bench in Charanjit Singh

Mann's case vide Special Leave to Appeal(Civil) No. 9346 of 2006 and has

observed that in view of Anjana Kishore versus Puneet Kishore 2002(10) SCC

194, the matter requires consideration. The Hon'ble Supreme Court in Anjana

Kishore's case(supra) observed as under:-

In view of the developments which have taken place during the

pendency of proceedings in this Court, we decline to transfer the

case from family court at Bandra, Mumbai to the family court at

Saharanpur. We, however, direct that as agreed to by learned

counsel for the parties, a joint petition shall be filed by the parties

before the family court at Bandra, Mumbai for grant of divorce by

mutual consent. Terms of compromise as filed before us shall also

accompany the joint petition. An application for curtailment of time

for grant of divorce shall also be filed along with the joint petition.

On such application being moved, the family court may, dispensing

with the need of waiting for six months, which is required otherwise

by sub-section (2) of section 13-B of Hindu Marriage Act, 1955,

pass final order on the petition within such time as it may deem fit.


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C.R. No. 794 of 2009 8

This direction we are making under Article 142 of Constitution, as

looking at the facts and cir circumstances of the case emerging

from pleadings of the need of making such a direction to do

complete justice in the case. The parties shall present themselves

before the learned Presiding Officer, family court at Bandra,

Mumbai on 17.9.2001 when the learned Presiding Judge shall take

further appropriate steps.

Thus, keeping in view the fact that the operation of the Division

Bench judgment in Charanjit Singh Mann's case (supra) has been stayed by the

Hon'ble Supreme Court of India and relying upon the judgment of Division Bench

of this Court in Jaswinder Kaur's case (supra), I allow this petition and set aside

the impugned order dated 21.1.2009.

The District Judge Chandigarh is directed to proceed with the

matter after waiving of the statutory period of six months as fixed under Section

13-B(2) of the Act. Keeping in view of the fact and circumstances of the case,

the District Judge, Chandigarh is also directed to decide the matter

expeditiously.

Both the parties through their counsel are directed to appear before

the District Judge, Chandigarh on 9.3.2009.

Copy of the order be given dasti under the signatures of Bench

Secretary.

March 3, 2009 (RAKESH KUMAR GARG)nk JUDGE`

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142- Shaveta Gargwaiving Time Period