Full Judgment
D.M. Dharmadhikari, J.
1. In matrimonial proceedings between the parties for seeking divorce by the wife under Section 13 of the Hindu Marriage Act which was filed on 14.7.1995, on 9.2.1996 Aan application was filed under joint signatures of the spouses through their Counsel for obtaining a divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. The spouses sought a decree of divorce under Section 13B of the Act on the date of presentation of the petition. The Matrimonial Court by order dated 12.2.1990, however, held that the decree sought of divorce on mutual consent cannot be passed before expiry of six months period from me date of joint filing of the petition. The Court held that the provision of Sub-section (2) of the Section 13B of the Act require the Court to direct the parties to wait for six months after filing of the petition based on mutual consent.
2. The learned Counsel appearing for the wife raised two contentions. Firstly it is contended that the period of six months can be reckoned by the Court from 14.7.1995 when the divorce petition was filed under Section 13 of the Act and not from 9.2.1996 when a joint petition under signatures of the spouses were filed for decree based on mutual consent under Section 13B of the Act. It is submitted that there were facts brought on record to show that the parties were lying separately for a period of more than one year and their reunion was impossible for the reasons mentioned in the main petition as also in the application. It is subjected that the period of 6 months fixed under Sub-section (2) of Section 13B of the Act is only 'directory. Reliance is placed on decision of Andhra Pradesh High Court in K. Omprakash v. K. Nalini, AIR 1986 AP 167, and decision of the learned Single Judge of this Court in Ramesh Kumar Pandey v. Gaurabai, I (1982) DMC 216. Reliance is also placed on another Single Bench decision in Dinesh Chandra Goyal v. Sitabai Goyal, II (1987) DMC 452.
3. At the outset it may be stated that the decision in the case the Ramesh Kumar Pandey (supra) makes no discussion as to whether Section 13B of the Act is directory or mandatory. That case is also distinguishable because there the application for mutual divorce was filed in appeal and therefore, the Court did not insist on waiting for a period of six months and passed decree of divorce under Section 13B of the Act.
4. The other case in Dinesh Chandra Goyal (supra). In paragraph 13 of the said judgment itis specifically stated that the decision of the Andhra Pradesh High Court in K. Omprakash v. K. Nalini (supra) cannot fte followed and the learned Single Judge dissented from the view expressed in that case that the provisions of Subsection (2) of Section 13B are not mandatory but only directory. The two decisions aforesaid, therefore, are not helpful to the case of the applicant wife that a waiting period of six months for seeking a decree of divorce on mutual consent is not mandatory.
5. In fact in my considered opinion, the decision of the Supreme Court in Smt. Sureshta Devi v. Omprakash, AIR 1992 SC 1904, I (1991) DMC 313 (SC), is a conclusive verdict that Sub-section (2) of Section 13B which provides for waiting period of minimum six months and maximuming beteen months has to be followed by me Court as done of the necessary requirements of passing a decree I Based on mutual consent. The question that arose before the Supreme Court as also various High Courts was as to whether one of the parties to the marriage has a right to withdraw the consent within waiting period. The Supreme Court answered the question as under.
'From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period/ one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Court of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13B is clear on this point. It provides that 'on the motion of both the parties... .if the petition is not withdrawn in the meantime, the Court shall....pass a decree of divorce. 'What is significant in this provision is that there should also be mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court should make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.'
Therefore, the first contention advanced that the waiting period of six months under Sub-section (2) of Section 13B is not mandatory but directory cannot be accepted.
6. The other submission made on behalf of the applicant is that after the expiry of the period of six months, the Court should not insist on re-appearance of the spouses for supporting the submission for mutual divorce. It is submitted that after expiry of six months, the Court shall pass a decree on the mutual consent application earlier filed by the parties jointly and the statements recorded in support of the same. The alternative submission also cannot be accepted as that would defeat the very purpose for which the waiting period of six months and maximum period of 18 months has been fixed in Sub-section (2) of Section 13B of the Act. The purpose behind it, as has been held by the Supreme Court, is to allow the parties time and opportunity to reflect on their decisions and make a considered joint motion after proper deliberations and seeking advice from relations and friends. The alternative submission also cannot be accepted in view of me authoritative pronouncement of the Supreme Court in the case (supra) in the following words:
'Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that 'I have withdrawn my consent or 'I am not a willing party to the devorce', the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua MOM for passing a decree for divorce under Section 13B, Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. 'The consent must continue to decree nisi and must be valid subsisting consent when the case is heard'. (See (i) Halsbury Laws of England, Fourth Edition Vol. 13, Para 645; (ii) Raydem on Divorce, 12th Edition, Vol. 1, Page 291 and (iii) Beals v. Beales, 1972 (2) All ER 667, 1972 (2) 2 WLR 972.
7. For the aforesaid reasons, the revision cannot be entertained and no interference can be made with order of the Court below. The revision is accordingly dismissed. There shall be no order as to costs