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FAO No.312 of 2012 HIGH COURT OF DELHI
SANKALP SINGH .…Appellant
Through: Mr. Rishabh Sancheti & Ms. Padma Priya, Advs. with Appellant in person.
Through: Mr. Ankur Mahindroo, Adv. Mr. Sudhanshu Batra, Sr. Adv.
(Amicus Curiae).
HON‟BLE MR. JUSTICE RAJIV SHAKDHER
SANJAY KISHAN KAUL, J.
JUDGMENT
1. Marriage under Hindu Law is sacramental. The reforms in Hindu Personal Law have a history of more than 180 years starting from the initiatives taken by Raja Ram Mohan Roy. There were various enactments to reform the law relating to marriages and divorce amongst Hindus. Post independence a Hindu Code was drawn up which resulted in different legislations relating to personal laws. Thus, The Hindu Marriage Act, 1955 (hereinafter referred to as the „said Act‟) is an Act to amend and codify the law relating to marriages among Hindus.
2. Section 13 of the said Act sets out the grounds on which a marriage can be dissolved by a decree of divorce like cruelty, desertion, 2013:DHC:1134-DB insanity, etc. However, for presentation of a petition for divorce, the causes given under Section 13 of the said Act were restricted by a requirement of a minimum period of subsistence of the marriage in view of Section 14 of the said Act.
3. Section 13 of the said Act is based on a fault theory (i.e., the opposite party must have been at fault on account of any of the grounds set out in the said Act and no party can take advantage of its own wrong). Act 68 of 1976 effective 27.5.1976 sought to carve out another line of divorce by bringing in the concept of mutual consent introducing Section 13B. The scheme of this Section provided for a petition to be presented satisfying three grounds: i. the parties have been living separately for one (1) year or more; ii. that they have not been able to live together; and iii. they have mutually agreed that the marriage should be dissolved. However, even after the Court is required to be satisfied on account of the aforesaid parameters, there is a further hiatus period provided under sub-section (2) of Section 13B of the said Act as the second motion has to be presented not earlier than six (6) months after the date of presentation of the petition referred to in sub-section (1) [not more than eighteen (18) months after the said date] if the earlier petition is not withdrawn in the mean time. On the satisfaction of the Court a decree for dissolution of the marriage can be passed. It is now settled legal position that this period of six (6) months cannot be waived by either the trial court or the High Court and the only exception to the same is the Supreme Court exercising power under Article 142 of the Constitution of India.
4. In the conspectus of the aforesaid background of the legal position we now come to the facts of the present case.
5. The appellant/husband and the respondent/wife were married according to Hindu rites on 19.2.2012 in Rajasthan and after the marriage lived together in Mumbai, the place of residence of the husband. It is the case of the parties that the marriage could not be consummated for reasons the parties do not wish to disclose. The respondent is stated to have left the matrimonial home on 12.4.2012 and the parties are stated to be living separately since then on account of temperamental differences. No rapprochement has been possible despite all endeavours. The appellant is stated to have been staying and working in USA and had come to India only for purposes of getting married and in view of the failure of the marriage was desirous of dissolution of the marriage at the earliest so that he could re-marry and settle down in life by going back to USA.
6. In order to resolve disputes the parties approached the Mediation & Conciliation Centre of the Delhi High Court and a Memorandum of Understanding/Conciliation Agreement was signed on 21.5.2012. Interestingly this was a pre-litigation mediation endeavour in which both the parties joined in. In those proceedings it was agreed that a mutual consent petition should be filed at the earliest without even waiting for the period of one (1) year of separation to elapse.
7. The parties, thus, filed a petition under Section 13B (1) of the said Act and along with that petition filed an application under Section 14 of the said Act praying for waiver of the period of one (1) year of separation for filing the petition. However, the Family Court, Patiala House dismissed this application vide order dated 12.6.2012 and consequently also dismissed the petition under Section 13 B (1) of the said Act.
8. A perusal of the impugned order shows that after noticing the salient facts including the plea of the parties of having settled issues qua maintenance/alimony, marriage expenses, etc., the petition and the application had been filed. The judgements cited qua the issue of waiver of the period of one (1) year were examined by the Family Court and have been distinguished. In CM (M) No.310/2011 titled Ved Bhushan Sharma Vs. Alka Sharma decided on 22.3.2011 the advanced age of the parties and the medical condition of the husband who was suffering from Cerebral Palsy were factors taken into account. In Arvind Kumar Vs. Nirmala Bharti @ Neha 182 (2011) DLT 236 the petition had been filed under Section 13 (1) (ia) of the said Act on grounds of cruelty.
9. The Family Court noticed that in Sunny Vs. Sujata 2012 IV AD (Delhi) 732 the learned ADJ had dismissed an application of the parties under Section 14 of the said Act and a joint petition filed under Section 13B of the said Act. An appeal was preferred before the Delhi High Court, which was also dismissed relying upon different pronouncements more specifically in Mohin Saili and Sonali Singh Vs. Nil 2010 (175) DLT 259 where it had been held that the period of one (1) year for living separately under Section 13B (1) of the said Act was not directory and the same was mandatory and could not be condoned under Section 14 of the said Act. The learned Family Court has, thus, held vide the impugned judgement that the principles of harmonious construction would require that the proviso to Section 14 of the said Act would be applicable in case of petitions filed under Section 13 of the said Act but not to petitions filed under Section 13B of the said Act as Sections 14 and 13B are mutually exclusive. It was this order which is sought to be assailed in appeal.
10. We considered it appropriate to appoint an Amicus Curiae to assist this Court in view of the importance of the legal principles required to be laid down which would have a far greater ramification than just a dispute inter se the parties. We, thus, appointed Mr. Sudhanshu Batra, Senior Advocate, as Amicus Curiae to assist this Court in the matter who has very ably assisted us apart from the assistance provided by learned counsels for the parties. It was conceded by all the learned counsels for the parties that there appears to be a cleavage of judicial opinion on the aforesaid crucial question and the Hon‟ble Supreme Court had not had the occasion to consider the aspect directly in any case. The question, thus, to be examined is as under: “Whether the benefit of proviso to Section 14 (1) of the said Act can be availed of to present a petition under Section 13B of the said Act for divorce by mutual consent even though one of the essential ingredients of sub-section 1 of Section 13B of the said Act to present the petition is that the party should be living separately for a period of one (1) year or more?”
11. In order to appreciate the controversy it is necessary to reproduce the relevant statutory provisions as under: “[13B. 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.]”
12. The cleavage of judicial opinions arises from the interpretation of the interplay of the said Sections of the Act. Pertinently, Section 13B of the said Act was inserted subsequently by Act 68 of 1976 when certain amendments were also simultaneously carried out to Section 14 of the said Act. Thus, one judicial view is that Section 13B is a Code by itself which is different from the grounds of divorce provided under Section 13(1) of the said Act. The philosophy of Section 13 of the said Act is that one of the spouses has to allege and prove the grounds of divorce against the other spouse and should not be taking advantage of his/her own wrong. This is, thus, based on a fault theory. Section 14 restricts presentation of such a petition for divorce within the period of one (1) year from the date of marriage. However, the proviso to sub-section (1) of Section 14 of the said Act allows presentation of a petition even before the end of one (1) year from the date of marriage on the ground that “a case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent”. Such exceptional hardship and depravity would, thus, have to be established by the petitioner in order to avail of the proviso to sub-section (1) of Section 14 of the said Act.
13. On the other hand Section 13B of the said Act though appears between Section 13 and Section 14 of the said Act in the statute was introduced subsequently by Act 68 of 1976 and this provision is a complete Code by itself. The reason for this is that it is not a new ground for grant of divorce within the theme of Section 13 of the said Act but introduced the concept of a divorce by mutual consent, i.e., parties without alleging anything against each other and without proving any of the grounds under Section 13 of the said Act can agree to go in for a divorce by mutual consent provided they satisfy the three ingredients mentioned aforesaid.
14. One of the essential ingredients provided therein is living separately for a period of one (1) year and, thus, unless this ground is satisfied the very basis of presentation of a petition for divorce under Section 13B of the said Act does not exist. Thus, the proviso to sub-section (1) of Section 14 of the said Act would have no application to presentation of a petition under Section 13B of the said Act. Needless to add that this would only be the first motion and there has to be a compulsory wait/re-think period of, at least, six (6) months and not more than eighteen (18) months when the second motion has to be filed and the Court has to be satisfied about the joint pleas of the parties. Thus, there can be no waiver of this one (1) year period from the date of the marriage.
15. This philosophy is also to be buttressed with the plea that under the proviso to sub-section (1) of Section 14 of the said Act an exceptional hardship and depravity has to be established and how would a court come to know about it unless it is disclosed, alleged/proved. In a mutual consent divorce petition no allegations are made against each other and, thus, by its very nature the proviso cannot apply to a petition under Section 13B of the said Act.
16. The second set of opinion is and would be based on different legal understandings. At the stage when by Act 68 of 1976 Section13B was introduced in the said Act, the provisions even of Section 14 of the said Act were amended. The legislature cannot be said to be ignorant of the provisions of Section 14 of the said Act when it introduced Section 13B of the said Act. The provisions of Section 14 of the said Act begins with a „notwithstanding‟ clause, i.e., “Notwithstanding anything contained in this Act”. Thus, irrespective of any other provision of the said Act, no petition for dissolution of marriage is to be presented within the period of one (1) year of the marriage (the period being modified by the amending Act 68 of 1976). Thus, the proviso to sub-section (1) of Section 14 of the said Act which permits presentation of a petition within the period of one (1) year of the marriage would equally apply to a petition to be presented under Section 13B of the said Act.
17. This aspect is sought to be reinforced by the wording of Section 13B of the said Act. Sub-section (1) of Section 13B of the said Act begins with “Subject to the provisions of this Act”. This would imply that the provisions of sub-section (1) of Section 13B of the said Act are subject to the provisions of the proviso to sub-section (1) of Section 14 of the said Act. The aspect of the requirement of alleging and establishing exceptional hardship and depravity is sought to be explained by suggesting a procedure that the parties may not like to allege against each other the aspects of such exceptional hardships but it can always be open to the parties, if they so agree, to jointly submit the same in a sealed cover as enclosure to an application under the proviso to sub-section (1) of Section 14 of the said Act in case of a petition under Section 13B of the said Act.
18. In respect of the aforesaid as to what is meant by use of the expression “Notwithstanding anything contained in the Act” as contradiction to the phrase “Subject to the provisions of this Act” reliance has been placed on the judgement of the Supreme Court in Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram AIR 1987 SC 117 = (1986) 4 SCC
447. It has been explained that when a clause begins with the word “Notwithstanding” the object is to give it overriding effect over other provisions of the Act which is equivalent to saying in spite of those provisions the particular clause would have a full operation. This in contra-distinction to the phrase “Subject to” which conveys that the provision would yield to another provision. The relevant discussion as contained in paras 68 & 69 is as under: “68. A clause beginning with the expression “notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract” is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court inSouth India Corpn. (P) Ltd. v. Secretary, Board of Revenue, Trivandrum [ AIR 1964 SC 207, 215: (1964) 4 SCR 280].
69. It is well settled that the expression “notwithstanding” is in contradistinction to the phrase “subject to”, the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject. This will be clarified in the instant case by comparison of sub-section (1) of Section 15 with sub-section (1) of Section 15-A. We are therefore unable to accept, with respect, the view expressed by the Full Bench of the Bombay High Court as relied on by the learned Single Judge in the judgment under appeal.”
19. The view, which we have referred to aforesaid, is also said to be supported by sub-section (1) of Section 13B of the said Act. It is not in dispute that neither the trial court nor the High Court can waive the period or wait of six (6) months between the presentation of the first motion and the second motion. It is, thus, submitted that all that is sought to be done by moving an application under the proviso to subsection (1) of Section 14 of the said Act is to reduce the period of presentation of the first motion under Section 13B of the said Act to a period less than a year whereafter in any case there would a further wait of six (6) months before the second motion is filed. It was, thus, suggested that this can be worked out by permitting such a petition to be presented provided it satisfies the requirement of exceptional hardship under sub-section (1) of Section 14 of the said Act and thereafter the parties would still wait for six (6) months period to present the second motion.
20. In the facts of the present case the effect would be that if exceptional hardship can be shown then the first motion presented on 23.5.2012 can be held to be valid permitting the second motion to be presented on an expiry of six (6) months period. The decree of divorce would come into effect only post second motion. None of the three essential ingredients of Section 13 B of the said Act are waived by ensuring that the decree of divorce does not take effect for a period of one (1) year from separation. The second motion can, thus, be presented after 12.4.2012 which would be within the window of six (6) to eighteen (18) months of first motion. On the other hand if the impugned order is sustained it would imply a fresh petition to be filed under Section 13B (1) of the said Act on the expiry of one (1) year of the separation, i.e., after 12.4.2012, and thereafter wait for another six (6) months.
21. Lastly in the aforesaid behalf it was also suggested that the very objective of introduction of Section 13B of the said Act was to make obtaining of divorce simpler by permitting the parties to jointly apply though undoubtedly a restriction of one (1) year was put so that it is not as if the parties after marriage act in haste in obtaining divorce and they make a serious endeavour to work the marriage. It has, thus, been suggested that liberal construction should be made of the provisions to further the object of obtaining divorce by mutual consent and where nothing is left in the marriage, no purpose would be served by prolonging the ultimate result of mutual consent divorce especially when it has been preceded by, in the present case, a prelitigation mediation.
22. The various judicial pronouncements cited by learned counsels for the parties and the Amicus Curiae are being discussed hereinafter: Proposition: A petition for divorce by mutual consent can be presented before the expiry of one (1) year of the marriage so long it is not under coercion or intimidation or undue influence, there are no chances of reconciliation and the parties have fully understood the impact and