Biswanath Somadder, J.
1. Heard the learned advocate appearing on behalf of the joint petitioners.
2. This is an application under Article 227 of the Constitution of India directed against an order, being Order No. 3 dated 7th January, 2008 passed by the learned District & Sessions Judge, Alipore, South 24 Parganas in Matrimonial Suit No. 1969 of 2007.
3. By the order impugned, the learned court below dismissed an interlocutory application filed by the joint petitioners herein for preponing the date of hearing of the mutual consent divorce petition, filed under Section 13B of the Hindu Marriage Act, 1955, primarily on two grounds, namely:
(a) At the time of hearing of the interlocutory application, the petitioners had not filed even a scrap of paper in order to support their contention of foreign assignment, and
(b) Mutual consent petition for divorce under Section 13B of the Hindu Marriage Act, 1955 could not be preponed, since statutory waiting period of six months had not yet elapsed.
4. The learned advocate appearing on behalf of the joint petitioners submits that so far as the first part of the order is concerned, i.e., with regard to proof foreign assignment, it would appear from annexure 'AA' to the instant petition, that the petitioner No. 1. (wife) was intending to travel to Dublin, Ireland, for which purpose her employer had furnished a no objection certificate to the Visa section of the Embassy of Ireland in order to facilitate her obtaining a visa from the concerned Embassy.
5. So far as the second ground of rejection is concerned, the learned advocate appearing on behalf of the joint petitioners submits that the provision of Sub-section 2 of Section 13B of the Hindu Marriage Act, 1955 was not mandatory and was directory in nature and the Court could proceed to pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree, provided of course, the court was satisfied, after hearing the parties and after making such inquiry as it thought fit, that a marriage had been solemnized and that the averments in the mutual consent petition were true.
6. The learned advocate appearing on behalf of the joint petitioners relies on a judgment rendered by a Division Bench of this Hon'ble Court in the case of Rajesh Lakhotia v. Smita Lakhotia reported in 2001 (1) CLJ page 565. He also refers to two other judgments, one rendered by a Division Bench of Andhra Pradesh High Court in the case of K. Omprakash v. K. Nalini reported in : AIR1986AP167 , and the other by a Single Bench of the Madras High Court in the case of K. Thiruvengadam and Anr. v. Nil reported in : AIR2008Mad76 .
7. It appears that the Division Bench judgment of this Court (supra) was rendered in an appeal preferred against the judgment and order passed by the learned Judge, Family Court, Calcutta, in a matrimonial petition, dismissing the appellant's petition under Section 13 of the Hindu Marriage Act, 1955, for dissolution of his marriage with the respondent. In the facts of that case, during the pendency of the appeal, the parties jointly filed an application under Section 13B of the Hindu Marriage Act, 1955, (hereinafter referred to as the 'said Act') praying, inter alia, that the appeal be converted into a petition for divorce by mutual consent under Section 13B of the said Act and that the waiting period of six months mentioned in Sub-section 2 thereof be waived and a decree of divorce be passed immediately, dissolving the marriage on the basis of memorandum of compromise jointly executed by them.
8. The Division Bench of this Court in that factual background, converted the Section 13 application to one under Section 13B of the said Act and taking into consideration that the waiting period as contemplated under Sub-section 2 of Section 13B of the said Act had already been undergone before the trial court where it was evident that the marriage had broken down irretrievably and there was no possibility of the parties once again coming together to live as husband and wife and having spoken to the parties separately, passed a decree for divorce by mutual consent.
9. In my opinion, the above Division Bench judgment is not at all applicable in the facts and circumstances of the instant case, since this is not a case where the petitioners have approached this Court for a similar relief, after having converted a Section 13 application to that of a Section 13B application.
10. In the instant case I find that the application under Section 13B of the said Act taken out by the joint petitioners was affirmed and verified sometime in August, 2007. For reasons best known to the joint petitioners, the same was not filed, till as late as 7th December, 2007. However, immediately after filing the said application under Section 13B of the said Act, they approached the learned court below with an interlocutory application for preponing the date of hearing, wherefrom the impugned order arises. The learned court below, while dismissing their application for preponing of hearing observed, as indicated above, that the petition could not be preponed, since the statutory waiting period of six months had not yet elapsed. Although, it is a matter of fact that the petition under Section 13B of the said Act was filed only in December, 2007, it is also a fact that immediately thereafter the interlocutory application for preponing of hearing of the Section 13B petition was filed by the joint petitioners herein. At that point of time, the learned court below ought to have taken the pleadings in the interlocutory application as true and correct, in the absence of any party controverting the same, since the interlocutory application for preponing the hearing was also filed jointly.
11. With regard to whether the statutory waiting period of six months under Sub-section 2 of Section 13B of the said Act was mandatory or not, the same has been considered at length in the Andhra Pradesh High Court's judgment (supra). It would be perhaps relevant to set out hereinbelow paragraphs 9 and 10 of the said judgment:
9. Section 13B is introduced into the statute book by means of the Marriage Laws (Amendment) Act, 1976. It permits for the first time, dissolution of a Hindu marriage by mutual consent of parties, provided the parties have been living separately after their marriage 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. Section 13B radically altered the legal basis of a Hindu marriage by treating it as an ordinary form of contract which competent parties can enter into and put an end to like any other contact by mutual consent. Just as the parties can obtain a consent decree from the Courts under Order 23, Rule 3 CPC so they can now under Section 13B of the Hindu Marriage Act obtain a consent divorce. Sri S.V. Gupte in his Hindu Law 3rd (1981) edition. Vol. 2, page 800, commenting on this change, wrote:
This is a very radical amendment as it enables divorce by consent. It also virtualy puts a death nail on the old concept of Hindu Law and Hindu morality that marriage is a sacrament and not a contract.
However, a petition filed for divorce by consent under Section 13B of the Hindu Marriage Act is required to be kept in abeyance for a minimum period of six moths. This is in sharp contrast with a petition filed for divorce by consent under Special Marriage Act which is liable to be kept in abeyance at least for one year. This liberalizing trend of law in the matter of granting divorce by consent cannot be lost sight of by Courts in interpreting that section. But even then Clause (2) of Section 13B requires a Court not to pass a decree for divorce before six moths of time lapses and after 18 months of time passes from the date of filing of such a petition for divorce by mutual consent. This is the last hope of the legislature for saving the marriage. The intention of the legislature is to provide a minimum period of six moths for rethinking of the parties. If the above time table fixed by Section 13B(2) of the Hindu Marriage Act is applied to the present application made by the parties in this case on 12th July, 1985. We have to adjourn this case till January, 1986 for passing a decree for divorce under that section, notwithstanding the fact that we are of the opinion that there is no chance of reconciliation between the parties who have been living away from each other for the last 4 1/4 years and are today most anxious and ready to obtain such a decree here and now. That situation raises somewhat an important legal question as to the meaning which we should attribute to Section 13B(2) of the Hindu Marriage Act. That question is whether the Legislature intended that Section 13B(2) of the Hindu Marriage Act should be treated as a mandatory provision of law or the Legislature intended that section to be treated merely as a directory provision of laws. We have already noticed the language of Section 13B(2). On first impression it is not impossible to hold Section 13B(2) to be mandatory. As a mandatory provision of law calls for its pound of flesh and requires to be complied strictly and it not being satisfied with offerings of more substantial compliance of its commands, we will have to adjourn this matter for six months and postpone the deliverance to the parties from this deadlock by that period off time (sic). It is well settled proposition of law that a statutory provision, though mandatory in form, can yet be treated as directory in substance. The question then arises whether there is anything in the text of Section 13B(2) of its context or purpose or design that calls for Section 13B(2) being interpreted as directory? In Our opinion, there are weighty reasons warranting the reading of Section 13B Clause (2) as directory. In that context, we must first call attention to the design of the law expressed in its liberalizing tendency of providing relief to parties on the basis of their mutual consent from their broken marriages. We must remember that this relief is granted by bringing about a profound alteration in the concept of a Hindu marriage from that of a sacrament to a contract. By that alteration, law has definitely set its fact against forcible perpetuation of the status of matrimony between unwilling partners. Next, we must note that this six month's time fixed by Section 13B(2) is not a role relating to the jurisdiction of the courts to entertain a petition filed for divorce by consent. That question of jurisdiction is dealt with by Section 13B(1) of the Act and must be strictly complied with by Section 13B(2) is a part of mere procedure. A procedural provision must be interpreted as a handmaid of justice in order to advance and further the interests of justice and not as a technical role. Above all we should note that if Section 13-B(2) is read as a mandatory provision and as applicable to the exercise of matrimonial jurisdiction by the appellate Courts also Section 13B(2) becomes totally unworkable. According to the literal reading of Section 13B(2) the Courts cannot pass consent decree of divorce beyond 18 months period from the date of its filing. In the event that such an application is filed by the parties and the Courts for some reason of human error or failure did not or could not dispose it of within the said period of 18 months, the literal reading of Section 13B(2) prevents the Courts from granting that relief thereafter. Similarly if a petition for divorce by mutual consent is filed before the lower Court and was dismissed by the lower Court for some reason, the appellate Court would be powerless to grant that relief on the basis of the application filed in the lower Court because 18 months must have elapsed by the time the matter reached the appellate form although the parties are still fighting relentlessly in the appellate Court. These considerations lead us to hold that it could not have been the intention of Section 13B(2) that the appellate Court should always drive the fighting parties to go through the purposeless forms of meaningless ceremony of petitioning again for consent divorce waiting and watching the completion of necessary number of resolutions of this mother Earth around the unmoving sun.
10. For all the above reasons, we are of the opinion that Section 13B(2) of the Hindu Marriage Act should be read as directory only. Section 13B(2), no doubt cautions the Courts of its duty to fight the last ditch battle to save the marriage; but when the Court is fully satisfied, on the basis of the proved facts, that in the interests of justice of the society and the individuals marriage tie should be put as under immediately, Section 13B(2) does not impose and fetter on the powers of the Court to grant instant decree of divorce. At any rate, we are clearly of the opinion that the time table fixed by Section 13B(2) does not apply to an appellate Court. The great Telugu poet Vemana said that the broken iron can be joined together, but not broken hearts. Parties have been living apart for long and their wedlock has now virtually become a deadlock. Chances of reunion had completely faded away. In these circumstances, we think it just and proper to grant a decree of divorce straightway.
Accordingly we pass a decree of divorce declaring the marriage between the appellant and the respondent as dissolved with immediate effect.
12. From a plain reading of the above quoted two paragraphs of the said judgment it is clear that the Division Bench of the Andhra Pradesh High Court was not only considering the exercise of matrimonial jurisdiction by the appellate courts, but was also considering, at length, the provision of Sub-section 2 of Section 13B of the said Act and opined that the same should be read as directory only.
(emphasis supplied by this Court).
13. The other judgment referred to by the learned advocate appearing on behalf of the joint petitioners was rendered by a single Bench of Madras High Court (supra) and was passed in a revisional application taking into consideration, inter alia, the judgment of Andhra Pradesh High Court. Paragraph 7 of the said judgment is reproduced hereinbelow:
7. I am in respectfull 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 have been adopted, which 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 13B(2) of the Act, is not legally sustainable. As correctly pointed out by the learned Counsel for the petitioners, if this section viz. 13B(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.
14. From the above observation of the Madras High Court's Judgment it is clear that even that High Court has held that the requirement of six months period was not mandatory and could be waived since the very purpose of liberalised concept of divorce by mutual consent would be frustrated, especially when the parties live separately and there was no chance of re-union.
15. Relying on the two above judgments of Andhra Pradesh and Madras High Court, I am also of the view that the provision of Sub-section 2 of Section 13B of the Hindu Marriage Act, 1955, is directory in nature and not at all mandatory since the legislative intent was only to ensure that the time-gap provided therein allowed the parties a chance of reconciliation and nothing else. Therefore, there is an obvious infirmity of reasoning and in appreciation of law by the learned court below, as it manifests from the order impugned.
16. It may not be out place to mention that during the course of hearing, I had called the joint petitioners to my chamber and spoken to them separately and they both expressed their desire for an earlier decree of divorce by mutual consent to be passed by the learned Court below.
17. I, therefore, set aside the impugned order dated 7th January, 2008, and allow the application of the joint petitioners for preponing the date of hearing, which shall now stand fixed peremptorily on 31st March, 2008. On that day itself, the learned court below is directed to hear out and dispose of the Section 13B application filed by the joint petitioners, in accordance with law.
The instant application thus stands allowed with the directions given hereinabove. Xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned advocate for the joint petitioners on usual undertakings.