MS. URVASHI SIBAL & ANR. v. GOVT. OF NCT OF DELHI

(1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes

JUDGMENT

ARUNA SURESH, J. (Oral)

1. Parties to the petition were married on 17.02.2009. Due to temperamental difference and irretrievable broke down of marriage, parties started living separately since 17.03.2009. Since one year had 2010:DHC:47 not elapsed from the date of separation, an application under Section 14 of the Hindu Marriage Act (hereinafter referred to as „Act‟) was filed for waiver of one year statutory period for divorce by mutual consent under Section 13 (B) of the Act. The said application was dismissed by the trial court vide impugned order dated 18.11.2009 in view of ‘Anil Kumar Jain vs. Maya Jain’ II (2009) DMC 449 SC’.

2. In Anil Kumar Jain’s case (supra), the Supreme Court was pleased to hold that it was only the Supreme Court in exercise of its extraordinary powers under Article 142 of the Constitution of India, who could waive the statutory period and pass decree for divorce by mutual consent under Section 13 (B) (2) of the Act. It was further held that neither the Civil Court nor even the High Court can pass an order before the expiry of period prescribed under the relevant provision of the Act or on grounds not provided under Section 13 and 13-B of the Act. Therefore, the Supreme Court did not confine itself to the question of waiver of six months period as is required to be observed by the parties after a petition under Section 13 (B) (1) of the Act is filed and allowed, before filing a petition under Section 13 (B) (2) of the Act. It discussed the power of this Court as well as of the Civil Court and its own court to waive the statutory period prescribed under Section 13 (B) or any other relevant provision of the Act or on grounds not provided under Section 13 and 13 (B) of the Act.

3. It is submitted by Ms. Meenakshi Lekhi, learned counsel for the Petitioners that this is a case where parties cannot reconcile their dispute as marriage is irretrievable broke down and therefore, the Court is within its right to invoke proviso to Section 14 of the Act and permit the parties to file a petition under Section 13 (B) of the Act before expiry of the statutory period of one year. These submissions are devoid of merits.

4. In „Smt. Sureshta Devi Vs. Om Prakash, (1991) 2 SCC 25’ the Supreme Court defined “living separately” appearing in Section 13 (B) (1) of the Act in the following manner:-

5. The Supreme Court further proceeded to analysis the requirement of Section 13 (B) (2) of the Act and also if the court had the power of condone the statutory period of six months to be observed by the parties before filing a petition under Section 13 (B) (2) of the Act. The said judgment has been followed in Anil Kumar Jain’s case (supra).

6. In ‘Nand Kishore vs. Suman’, Matrimonial Appeal No.134/2009 decided by me on 15th December, 2009, while dealing with a similar question, reliance was placed on „Smt. Sureshta Devi’s case (supra). I further distinguished the provisions contained in Section 13 (B) (1) and Section 14 of the Act for waiving the statutory period of one year before filing a petition under Section 13 or 13 (B) of the Act, as the case may be. It was observed:-

7. Thus, it is clear that the statutory period of one year required to be maintained by the parties for filing a petition under Section 13 (B) of the Act are independent of the provisions contained in Section 14 of the Act. Section 13 (B) when read is a complete Code in itself and, therefore, for filing a petition under Section 13 (B) of the Act, the parties cannot be allowed to invoke Section 14 seeking waiver of the statutory period of one year from separation for filing a petition under Section 13 (B) of the Act.

8. Hence, I find no infirmity or illegality in the impugned order of the trial court, the petition is accordingly dismissed.

JUDGE JNAUARY 07, 2010 vk