2008(5) ALL MR (JOURNAL) 8
(MADRAS HIGH COURT)

P. JYOTHIMANI, J.

K. Thiruvengadam & Anr.Vs.Nil

C.R.P. No.3159 of 2007

24th October, 2007

Petitioner Counsel: T. DHANASEKARAN

Hindu Marriage Act (1955), S.13-B(2) - Divorce by mutual consent - Waiver of the statutory period of six months - No possibility of re-union - Provision of six months waiting period being only directory can be waived.

There is an obligation on the part of the Courts to make last minute efforts to save the marriage at any cost. It is only with that view in mind, the law makers have fixed the period of six months, so as to enable the parties to come together for mutual settlement instead of mutual divorce. But, in case, where there is no possibility of re-union, especially after the divorce by mutual consent process has been adopted, which is by way of liberalised process, the facts of each and every case has to be considered and it is always open to the Court to decide about the waiver of the period of six months. If this section viz. 13-B(2) of the Act is read as mandatory, then the very purpose of liberalised concept of divorce by mutual consent will be frustrated, especially when the parties have lived separately and there was no chance of re-union. AIR 1988 Guj 159, AIR 1994 Kar 12, AIR 1986 AP 167 - Rel.on. [Para 7]

Cases Cited:
Grandhi Venkata Chitti Abbai, AIR 1999 AP 91 [Para 5]
K. Om Prakash Vs. K. Nalini, AIR 1986 AP 167 [Para 6]
Roopa Reddy Vs. Prabhakar Reddy, AIR 1994 Kar 12 [Para 6]
D. H. Garasia Vs. N. Mansu, AIR 1988 Guj 159 [Para 6]
Sreelatha Vs. Deepthy Kumar, AIR 1998 Kerala 97 [Para 6]


JUDGMENT

JUDGMENT :- The revision is directed against the order of the learned Subordinate Judge, Thirupattur made in IA No.109 of 2007 in HMOP No.101 of 2007 dated 17-9-2007, under which the learned Subordinate Judge, by considering the said application filed jointly by both the husband and wife for divorce by mutual consent and also petition praying for condoning the six month period, directed the matter to be called after six months, viz., on 20-3-2008.

2. Both the husband and wife, who are the joint petitioners represented by the same counsel have filed the said application for divorce by mutual consent and it is not in dispute that provisions of Section 13-B(1) of Hindu Marriage Act, 1955 (in short, "the Act") has been complied with and based on that they were also examined in the Subordinate Court. However, considering the said application filed by both the parties for condoning the six months period, the learned Judge, has in effect refused the same and having taken evidence, posted the case after six months. It is, as against that part of the order of the learned Judge, present revision is filed jointly by the husband and wife.

3. The points raised on behalf of the parties as it is seen in the affidavit filed in support of the above petition is that for the past two years, the petitioners have been living separately and there was no chance of reunion. Moreover, the wife, who is a joint petitioner, is aspiring for higher studies in abroad and if she is made to wait for six months time, she will be loosing the opportunity to proceed with her higher studies. In view of the same, the petitioners have jointly prayed for waiving of the statutory requirement of six months time.

4. While dealing with the aspect of six months time, it is relevant to extract the provisions of Section 13-B(1) and (2) of the Act, which reads as under :

"13-B. 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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 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 solemnized 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."

As per Section 13-B(1) of the Act, the condition precedent for the husband and wife to file an application for divorce by mutual consent is that they have been living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. On the facts and circumstances of the case, it is not in dispute that this provision has been complied with. On the other hand, Section 13-B(2) of the Act says that, after six months of the presentation of the petition and not later than eighteen months, if the petition is not withdrawn then the Court has to hear the parties and make enquiry and pass appropriate orders.

5. The learned counsel appearing for the petitioners would submit that the period of six months mentioned under Section 13-B(2) cannot be treated as mandatory. His contention is that when once, under Section 13-B(1) it is made clear that the husband and wife are unable to live together for a period of one year, further period of six months after filing the petition for mutual consent can only be treated as directory and not as mandatory. He would rely upon the judgment of the Andhra Pradesh High Court in Grandhi Venkata Chitti Abbai [AIR 1999 AP 91). In this case, which is also similar on facts of the present case, the Andhra Pradesh High Court has held that the prescription of the statutory period of six months in respect of divorce by mutual consent can be waived and the parties can be given liberty to part their company without waiting for the said statutory period.

6. The Andhra Pradesh High Court in K. Om Prakash Vs. K. Nalini (AIR 1986 AP 167), has held that the prescription of six months period is not mandatory and it is only directory in-nature and that was the consistent view taken by various High Courts, including the Karnataka High Court in Roopa Reddy Vs. Prabhakar Reddy (AIR 1994 Kar 12) and the Gujarat High Court in D. H. Garasia Vs. N. Mansu (AIR 1988 Guj 159). Likewise, the Kerala High Court in Sreelatha Vs. Deepthy Kumar [AIR 1998 Kerala 97 at 98) has held that in appropriate case the period of six months can be waived by the Court.

7. I am in respectful agreement with the consistent views taken by various High Courts. It is no doubt true that there is an obligation on the part of the Courts to make last minute efforts to save the marriage at any cost. It is only with that view in mind, the law makers have fixed the period of six months, so as to enable the parties to come together for mutual settlement instead of mutual divorce. But, in cases, where there is no possibility of re-union, especially after the divorce by mutual consent process has been adopted, which is by way of liberalised process, the facts of each and every case has to be considered and it is always open to the Court to decide about the waiver of the period of six months. Therefore, the view taken by the learned Subordinate Judge that the requirement of six months period as mandatory and cannot be waived by placing reliance on Section 13-B(2) of the Act, is not legally sustainable. As correctly pointed out by the learned counsel for the petitioners, if this Section viz. 13-B(2) of the Act is read as mandatory, then the very purpose of liberalised concept of divorce by mutual consent will be frustrated, especially when the parties have lived separately and there was no chance of re-union.

8. In view of the above said facts, the order of the learned Subordinate Judge dated 17-9-2007 made in I.A. No.109 of 2007 in HMOP. No.101 of 2007, in so far as it relates to adjourning the matter to 20-3-2008, is set aside and the learned Subordinate Judge is directed to take up the matter and pass appropriate orders in accordance with the observation made above and such order shall be passed within a period of two weeks from the date of receipt of copy of this order.

9. The learned counsel appearing for the petitioners states that there is another criminal case pending between the same parties before the Judicial Magistrate No.I, Thirupattur and the same is posted on 29-10-2007. Therefore, the parties are directed to appear before the Subordinate Court, Tirupattur on the same day and the learned Subordinate Judge is directed to take up the application and dispose of the same as directed above.

With the above direction, the civil revision petition is allowed. No costs.

Ordered accordingly.