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CM (MAIN) NO.10/2010
Date of Decision: January 07, 2010
MUKESH ASHOK GUNDECHA & ANR. …..Petitioners
Through: Mr. T.P.S. Kang, Adv. with Ms. Prerna Mehta, Mr. M.M. Alam, Advocates.
Through: Mr. Shoaib Haider for Mr. N. Waziri, Standing
Counsel.
JUDGMENT
(1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ?
JUDGMENT
ARUNA SURESH, J. (Oral)
1. Impugned in this petition is the order of the Additional District Judge, North-West dated 05.12.2009 whereby the application of the 2010:DHC:46 petitioners seeking waiver of six months period for filing petition under Section 13 (B) (2) of Hindu Marriage Act (hereinafter referred to as „Act‟) was dismissed.
2. Petitioners were married according to Hindu rites on 20.01.2003 at Maharastra. A female child named Tanya was born from the wedlock of the parties on 25.09.2006. However, parties could not continue to live together because of temperamental disputes and started living separately since 18.05.2007. As marriage had irretrievably broke down, parties decided to dissolve their marriage by way of decree for divorce by mutual consent on terms and conditions contained in para 5 of the impugned order.
3. Petitioners filed a petition under Section 13 (B) (1) of the Act. The said petition was allowed vide order dated 16.11.2009. Subsequently, Petitioners filed application seeking waiver of six months period for filing Second Motion Petition under Section 13 (b) (2) of the Act on 04.12.2009. The said application was dismissed by the trial Court on 05.12.2009 while relying upon ‘Anil Kumar Jain vs. Maya Jain’ II (2009) DMC 449 SC’.
4. I find no infirmity or illegality in the impugned order of the trial court dated 05.12.2009.
5. Way back in the year 1990 the Apex Court in „Smt. Sureshta Devi Vs. Om Prakash, (1991) 2 SCC 25’, has observed that the statutory period of six months required to be complied with before filing a petition under the said provision is a mandate in nature. The Supreme Court has observed:-
6. Since thereafter, Sureshta Devi’s case is being followed by the Supreme Court in catena of judgments.
7. In Anil Kumar Jain’s case (supra) also Sureshta Devi’s case was considered by the Apex Court. While doing so, it was observed that it was only the Supreme Court who in exercise of its power under Article 142 of the Constitution of India can grant relief to the parties without waiting for the statutory period of six months stipulated under Section 13 (B) of the Act.
8. In ‘Asmita Roy Choudhary vs. Ram Babu’, CM
(M) No.1299 of 2009’, decided by me on 13th November, 2009, similar question was agitated and waiver of six months period was sought for filing a petition under Section 13 (B) (2) of the Act. While dismissing the petition, it was observed:- “…..Thus, it is clear that petition for divorce by mutual consent has to be considered and treated on a different footing and the conditions precedent prescribed under these Sections must be satisfied before presentation of a petition seeking divorce under the said Section. No undue hardship or inconvenience or prejudice is caused to the parties by complying of the provisions contained in Section 13(B)(2) of the Act. The validity and constitutionality of the provisions contained in this Section has been repeatedly upheld by the Supreme Court in various cases. The Court while interpreting the statutory provisions cannot add or subtract the words in the Section nor would it give meaning to the language of the Section, other, than what is intended on the plain reading of the provisions. Plain reading of sub- Section (2) of Section 13(B) of the Act makes it clear that parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than eighteen months after the said date. This provision has been incorporated with a view to provide time to the Court to satisfy the genuineness of the claims in the petition, find out whether the consent was not obtained by force, fraud or undue influence. For that purpose, the Court is at liberty to make enquiry and may record the statements of the parties or hear them. If the Court is satisfied that the consent is voluntary, without any force, fraud or undue influence and that the parties have mutually agreed that the marriage should be dissolved, it must pass a decree for divorce under Section 13(B)(2) of the Act.”
9. Hence, I find no merits in the petition, the same is accordingly dismissed.
JUDGE JNAUARY 07, 2010 vk