Judgment:
Hari Nath Tilhari, J.
1. The applicant had filed a petition under Section 13(1)(i-a) of the Hindu Marriage Act, seeking for a decree of divorce by dissolving his marriage with the respondent. The trial Court i.e., the Family Court, after considering the matter in detail, held that the petitioner, before it, failed to prove that the respondent, after solemnization of the marriage, treated him with carely and it further observed that in view of the said findings, petitioner is not entitled for the relief claimed and dismissed the petition with this finding vide judgment and Order dated 7-10-1999. Hence, the husband-petitioner filed an appeal under Section 19 of the Family Courts Act, 1984.
2. During the pendency of the appeal, it appears, on some mistaken advise, a joint petition under Section 13B of the Hindu Marriage Act was filed as a miscellaneous application in Miscellaneous First Appeal No. 5073/1999. This appeal was filed on 8-3-2000. This application LA. IV along with the appeal has been listed before us.
3. The learned counsel for the appellant vehemently contended that this Court, may pass a decree for divorce under Section 13B of Hindu Marriage Act and dispose of the appeal finally. The learned counsel contended that the purpose of this Section 13B which has been introduced is that, if the marriage has already broken and the parties cannot live together, the parties may be allowed to separate and be free from the bonds of marriage at the earliest possible and made reference to a decision of this Court in the case of Roopa Reddy v. Prabhakara Reddy reported in : AIR1994Kant12 . No doubt, the Division Bench of this Court opined that there is no conditionthat six months period should be strictly complied with. Here, that is not the question. Firstly, the question is whether this petition or application described as a joint petition under Section 13B of the Hindu Marriage Act may be filed as a miscellaneous application?
Section 13B reads as under:--'Section 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 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 month 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 now 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.'
4. A reading of Sub-section (1) of Section 13B reveals that no doubt, a joint petition for dissolution of marriage by a decree of divorce may be filed by both the parties of the marriage on the ground that they have lived 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.
5. The question is, whether this petition under Section 13B can be filed and has to be filed.
The language of the section per se is very clear and it is a well settled principle of law that when the language of an enactment is very clear and is free from doubt and free from ambiguity, then the expression used in the Act should be given effect to. Section 13B provides that such an application orjoint petition for dissolution of marriage can be filed before the District Court. The expression is, 'a petition for dissolution of marriage by a decree of divorce may be presented to the district Court by both the parties.'
6. The expression 'District Court' has well been defined in Section 3 Clause (b) of the Hindu Marriage Act.
'Section 3. Definition.-
In this Act, unless the context otherwise requires,-- (b) 'district Court' means, in any area for which there is a city Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, and includes any other civil Court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act.'
No context to otherwise appears from the language of the Act. Therefore, District court here means, the Principal District Court or Civil Court authorized to deal with the matters. It may include Family Court. It has nowhere been provided that the expression 'District Court' will include in itself the High Court. No doubt under the Hindu Marriage Act, a provision is there for the appeals and appeals are filed in this Court by the parties aggrieved. But the High Court is not a District Court.
7. The remedy under Section 13B is no doubt with an object to bring an end to the marriage where there is no reconciliation possible and the marriage has almost become dead. But, we live in democracy under a Constitution and democracy will flourish if we follow the rule of law. Justice is to be imparted according to law and not according to the whims and fancies of any of us. The section when directs that remedy under Section 13B can be availed of by moving the District Court, this petition under Section 13B should have been filed and could be filed only before the original Court i.e., the Court competent to entertain the petition for divorce, meaning thereby the District Court or the Family Court. This application cannot be treated as a miscellaneous case or miscellaneous application in the appeal. Really a petition under Section 13B itself is a case of original nature and under it is provided that on an motion being madenot 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 during this period, the petition is not withdrawn, then the Court, after hearing the parties and after making such inquiry as it thinks fit and makes up the mind that there is no possibility of any reconciliation between the parties, may pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. Whether six months period is mandatory to await or not, we don't want at this stage to express any opinion. But, primarily, when a power has been given to be exercised in a particular manner with the direction of law that, when a petition is made, to await for six months and in no case more than eighteen months, it is ordinarily meant to be adhered. So, at least six months period is provided with the hope that perhaps good sense may prevail between the parties before the Court, and marital ties may get a second life. Really we have always valued the concept of marriage between husband and wife as pious. So, provision of awaiting for six months is in the interest of marital relation so as to avoid any hasty action or decision and the Court may thereafter examine the situation and after being satisfied about the necessary condition thereunder, pass the order or decree.
8. Any way, in, the present case, this petition has wrongly been filed before this Court. It is always open to the petitioner to present the petition under Section 13B jointly to the Family Court or the District Court competent to entertain the petition under the Hindu Marriage Act and thereafter the District Court concerned will dispose of the petition in accordance with law.
The present miscellaneous application, being not entertainable by this Court, has to be rejected. But the rejection of this application, we may make it clear, will not debar the petitioners or the appellant and his wife to move the proper Court i.e., the District Court or the Family Court to such a petition.
LA. IV, as such, is hereby rejected and dismissed as having been made before this Court which is not competent itself to entertain the same.