Judgment:
Pasayat, J.
1. Marriages are made in heaven, it is said. But, looking at the large number of litigations coming to Courts seeking judicial separation, divorce, grant of maintenance what comes to mind is Shakespeare's words in Merchant of Venice : 'The ancient saying is no her say, Hanging and wiving go by destiny.' The immortal writer had written : 'A young man married is a man that's marred' (in 'Alls Well That Ends Well').
2. Appellant Smt. Satyabhama Nayak (hereinafter referred to as the 'wife') and respondent Narendra Kumar Nayak (hereinafter referred to as the 'husband') entered into marital ties on 6-6-1982. They were blessed with a child. Husband filed T.S. No. 92 of 1990 in the Court of Sub-Judge, Rourkela (now Civil Judge, Sr. Divn.) seeking a decree of divorce under Section 13 of Hindu Marriage Act, 1955 (in short, the 'Act') on the ground of desertion. Subsequently, the suit was transferred to the Court of learned Judge, Family Court, Cuttack on the basis of order passed in M JC No. 47 of 1991 filed by the wifeand was registered as Civil Proceeding No. 446 of 1991. Criminal Misc. Case No. 117 of 1991 was filed by the wife and her son for maintenance in terms of S. 125 of the Code of Criminal Procedure, 1973 (in short, the 'Code'), in the Court of Sub-Divisional Judicial Magistrate, Kandrapara. The same was renumbered as Criminal Proceeding No. 727 of 1991 in the Court of learned Judge, Family Court, Cuttack on transfer. Final order was passed in the said proceeding directing husband to pay Rs. 250/- per month to the wife, and Rs. 100/- per month to the son with effect from 1-10-1991. Misc. Case No. 334 of 1992 was filed by the wife and her son for enhancement of maintenance from Rs. 350/- (sic) to Rs. 2,000/- per month. On 4-4-1994 all the proceedings were taken up together and disposed of with the following observations:
'Today the parties directly spoke to each other and found that there is no scope for re-unity. They have agreed for divorce on condition that the petitioner shall pay Rs. 500/- per month on or before 10th of each month to the respondent with effect from today. Alternatively the petitioner is allowed to deposit Rs. 40,000/- at a time out of which the respondent can maintain herself and see the welfare of her son Nihar Ranjan Nayak. The respondent, assures that she will look after the education and development of Nihar Ranjan Nayak.
Cr.P. 334/92, 335/92 and 617/93 pending in between the parties regarding realisation of arrear maintenance and enhancement of the maintenance amount arc disposed of on condition that the petitioner pays Rs. 2,000/-tdwards closure of these proceedings.
In the result the petition is allowed, but without costs on condition that the petitioner shall deposit Rs. 40,000/- in a lump sum by way of Bank draft within 3 months. Until such time, the petitioner shall send Rs. 500/-directly to the respondent by way of Bank draft by registered post.'
3. Mr. A.K. Mohapatra, learned counsel for the wife submitted that the course adopted by the learned Judge, Family Court isunknown to law. Even if it is conceded but not admitted that the wife had agreed for a divorce, a decree for divorce could not have been passed without compliance with the requirements of Section 13B of the Act. Mr. K.M. Mishra, learned counsel for the husband on the other hand submitted that after having agreed for a divorce, there is no scope for making a grievance and therefore, appeal is thoroughly misconceived.
4. Marriage, it has been said, is the usual fate of most of the adult persons. Their happiness in life to a great extent depends not only upon the state of their physical health but also upon the health and well-being of their marital relations. A happy marriage life is undoubtedly a great boon and a good many achievements of some of the stalwarts of history can be traced to their domestic happiness and the inner strength and support they received while facing the termoil of life from their life companions. The converse, however, is not true and it would not be correct to say that strained marital relations would necessarily affect success in life, yet traumas and tension, it is the society which cannot be lost sight of. The institution of marriage is of vital importance to society. According to Bantham, under whatever point of view the institution of marriage is considered nothing can be more striking than the utility of this noble contract, the tie of society and the basis of civilisation, and that to perceive its benefits, it is only necessary to imagine for a moment what man would be without that institution. Sick marital relations pose a problem not merely for the related spouses, they have much wider implication. They have their repercussions and impact upon society and the same give rise to social problems. Harmony in society is inconceivable where there are dissatisfied parties that make a home which is one of the most crucial units in the hierarchy of social institutions. Emotional stability of society is linked with the institution of marriage. Concepts underlying matrimonial relations affect not only happiness of the individuals, they are also concerned with social norms and ethical mores. The institution of marriage has facets which are both public as well as privatein nature. They impinge, as inevitably they would, upon our actions of public and private morality. Broken homes and strained marital relations are not only a source of extreme anguish for the individuals concerned, they are also symptomatic of a social malaise and call for rational and sympathetic approach. Divorce is sometimes described as a social innovation and an escape valve for the inevitable tension of marriage. These aspects were highlighted in great detail by Justice Khanna in a speech delivered in the inaugural seminar on the 'Hindu Marriage Act and Special Marriage Act' on 21-2-1975.
5. Wedded as it was to the doctrine of indissolubility of marriage (marriage being a sacramental union was an inviolable and immutable union thus even death did not dissolve the marriage), the Dharmashastra did not recognise divorce, and any attempt to deduce from stray Smiriti texts the proposition that divorce was recognised by some Smiritikars is nothing but one's inability to comprehend the basic concepts that the Dharmashastra propounded. However, the Dharmashastra's adherence to the doctrine of indissolubility of marriage did not hamper the recognition of the people's need of divorce, and a large section of Hindus (i.e. the lower classes) did enjoy the right of divorce. This was under the custom which prevailed over the sacred law. Customary modes of divorce were easy. In some cases a marriage could be dissolved by mutual consent. Sometimes divorce could also be purchased, very little formalities for dissolving a marriage were needed. Many a time it was purely a private act of parties. In some communities a forum was necessary it was either a Panchayat or a family council. Customary divorce was the privilege of the lower castes and higher castes seldom had a custom which permitted divorce.
In the pre-Christian Roman law marriage and divorce were essentially private acts; Romans had the same freedom of dissolving their marriage as they had of entering into it. No formalities were needed for either. The Christian world began by calling their marriage a sacramental and propounded thedoctrine of indissolubility of marriage. In the Christian world, marriage could not be dissolved even by custom. In England only change that could be made was of divorce by an Act of Parliament. It was this rigid adherence to the doctrine of indissolubility of marriage which is partially responsible for the recognition of divorce later on. Largely, divorce came to be recognised in England and other Protestant countries on account of new ideas of liberty and equality generated by the Industrial Revolution. When marriage was accepted as essentially a contract, it was next logical step to recognise divorce. However, marriage was not equated with a commercial contract. It was accepted that marriage being a social institution, there was a social interest in its preservation and protection. Thus, it came to be accepted that marriage could be dissolved only in those cases where a party to the marriage by his act fundamentally undermined the marriage. These aspects were highlighted by Mr. Peras Dawan, an eminant writer in an article named as 'Divorce Structure of the Hindu Marriage Act, 1955 and Special Marriage Act, 1954'.
6. A Danish proverb says that a deaf husband and a blind wife are always a happy couple. Montaigne had in a lighter vein written that 'marriage is like a cage; one sees the birds outside desperate to get in, and, those inside equally desperate to get out', it was rightly said by Herbert Louis Samuel that 'it takes two to make marriage a success and only one a failure'. Incompatibility, incongruity and uncongeniality are the main causes of marital breakdown. It is not to be forgotten that man and woman in the human creation are complementary to each other. Man and woman are indispensable to each other and the status of one depends upon the existence and longing of the other. The breakdown of marriage does not take place in one day. It is a process in which the spouses drift apart. First there is apathy, then indifference and then positive aversion. The consortium of husband and wife, the kind of association which is possible only between husband and wife, ultimately comes to an end. Unfortunately it is forgotten that marriage does not merely sanctify physicalrelationship, it has to have emotional understanding, mental adjustment. In a home the consideration that really obtains is the natural love and affection which may have very little consideration in the cold Courts. The warmth of feelings of two human beings who come to Court to battle out their marital difference may constitute at the most 'materials providing basis for adjudication'. The relationship which passes through hot and cold days of domestic life may provide insight to the problem, but that is all. Atkin, J. in a famous judgment said: 'the parties themselves are Advocates, Judges, Court, Sheriffs Officer and Reporter. In respect of these premises each house is a domain into which the King's writ does not seek to run and to which his officers do not seek to be admitted'. This illustrates that the house of everyone is to him his castle and fortress. The spouses can claim a kind of sacred protection behind the door of the family home which, generally speaking, the civil authority may not penetrate. 'The institution of marriage has long been on a slippery slope. What was once a holy estate enduring for the joint lives of the spouses is steadily assuming the characteristics of a contract for a tenancy at will.' (See Funder v. St. John Mildmay (1938) 1 AC 34 per Lord Russel of Killawen). Marriage is not every casual commerce. A mere sexual commerce, without the intention of cohabitation, and bringing up of children, would not constitute marriage. But when two parties agree to have that commerce for the procreation and bringing up of the children and for such lasting cohabitation, that would be a marriage in the sight of God and man. Cohabitation continues to the end of life. It is not mere temporary or casual commerce, but a contract of permanent nature, in the intention of the parties. Marriage is a contract of the greatest importance in civil institutions, and is charged with a vast variety of rights and obligations. Rights of property are attached to it. (See Lindo v. Belisario (1975) 1 Heg Con 216 per William Scott).
7. Divorce is said to be derived from 'divertends', because a man is diverted from his wife. (Divortium dicitur a divertendo, quis vir divertitur ab uxore). Divorce is not areward for marital virtue on the one side and penalty for marital delinquency, on the other; but a defect for both, a failure of marital two-in-oneship in which both the members however unequal their responsibility are inevitably involved together. (See Mortimer Committee of England, 1964 Report). Life is not always a bed of roses. Minor differences get blown out of proportion. It is lost sight of the fact that adjustment, tolerance, and understanding of each others problem is the hallmark of a happy marriage. That is why it is said 'Ajayuddha, rishi shraddha, prabhate meghadambar, dampatya kelsheibasche behwadambare laghu kriya' (fight of goats, shhradha of rishis, quarrel between spouses and morning clouds start with a bang but end with a whimper). Unfortunately in modern times, tolerance, adjustment have become 'scarce commodities' in domestic homes. In the battle of egoes, the plight of children is often lost sight of. They become sacreficial objects in the clash of spouses. Divorces are intended to where marriage is irretrievably broken, with no remote chance of the spouses coming together emotionally and/or physically. Where it would be cruel, impracticable, impossible or undesirable for two human beings to live together under the same roof, divorce may be the solution, not otherwise. Bertrand Russel observed that 'perhaps easy divorce causes little unhappiness than any other system' in his book 'Autobiography of Russel'. Divorce by mutual consent is one of the modes of easy divorce. Divorce was not known to the ancient Hindu law. The reason is that a marriage from the Hindu point of view creates an indissoluble tie between the husband and the wife. Neither party, therefore, to a marriage can divorce the other unless divorce is allowed by custom. In many States, however, divorce is allowed on certain grounds as the result of legislation like the Bombay Divorce Act, 1946 prior to the promulgation right of divorce but dissolution of marriage was recognized by customary law. It is for the first time that Section 13 of the Act provides the relief of divorce to all Hindus on all India basis. The customary divorce was not permissible to the three regenerate classes under the traditional Hindu law. Initially,statutory grounds of divorce did not include divorce by mutual consent. Provision for divorce by mutual consent in terms of Section 13B were introduced subsequently. Analogous provision exists in Section 28 of Special Marriage Act, 1954. This provision had no parallel in Indian Divorce Act, 1869. Section 13B was inserted by Act 68 of 1976 i.e. it came into operation by virtue of amendment in the Marriage Laws (Amendment) Act, 1976. It reads as follows:
'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 months after the date of the presentation of the petition referred to in Sub-section(l) 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.'
Section 13B deals with divorce in the case of broken down marriage by mutual agreement in order that they must apply for divorce as early as possible to obviate further emotional turmoil. As provided under Sub-section (2), party to the prayer for divorce by a mutual consent may withdraw the consent. If petition is not withdrawn, Court may after 6 months and before 18 months pass a decree for divorce. Before passing it, Court must be satisfied after hearing the parties and after making enquiry as it thinks that a marriage has been solemnized and that the avermentsmade in the petitions are true. From a bare reading of the provision, 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 six to eighteen 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 joint motion under Sub-section (2). There is nothing in the section which prevents such courses. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. What is significant in Sub-section (2) 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 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 could 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. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13B. Mutual consent should continue till the divorce decree is passed. '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, page 645, (ii) Rayden on Divorce, 12th Edition, Vol. I, page 291, and (iii) Beales v. Beales, (1972) 2 All ER 667, (iv) Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1904].
The course adopted by the learned Judge, Family Court is not sanctioned in law. He has proceeded on the basis that since the parties wanted divorce by consent that has to be at once granted. Procedure for divorce by mutual consent is laid down in Section 13B. Requirements mandated by Section 13B of the Act could not have been given go bye bythe learned Judge, Family Court. The motion for divorce by mutual consent, before accepted to crystallise into a decree has to pass through the waiting period. Instant acceptance is not permissible. Added to that legal infimity, there is another fallibility in the decision. A pre-condition of lump sum payment of Rs. 40,000/- has been imposed. Such a condition is not sanctioned in the Act. Looked at from any angle, the order is indefensible. Therefore, order dated 4-4-1994 so far as it relates to acceptance of prayer for divorce is indefensible and is vacated. The matter shall be considered afresh by the learned Judge, Family Court. He shall reconsider all the proceedings afresh.
The appeal is allowed to the extent indicated above. No costs.
A. Deb, J.
8. I agree.