M. Sailaja and Another - Court Judgment

Excerpt:
family - annulment of marriage - section 13-b (2) of hindu marriage act, 1955 - petitioners filed divorce petition on basis of mutual consent in city civil court - trial judge fixed date of appearance after six months - application made to dispense with statutory period - rejected - revision filed - time limit is directory but it has to construed - decree of divorce cannot be given as soon as petition filed - held, trial court to decide matter. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - (1) xx xx xx xx xx (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 had 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. it was contended by the learned counsel for the petitioners that the statutory time limit incorporated in section 13b(2) of the act does not inhibit the appellate court to grant a decree, if the appellate court is otherwise satisfied that the marriage should be dissolved. the trial court has no power to alter the statutory time limit enacted in section 13b(2) of the hindu marriage act, 1955. it is well settled that when a statute ordains a particular procedure prescribing a certain time limit, the court is bound to comply with the same; by resorting to an intefpretative process, the object of the statute cannot be defeated. if such reference is made, the very purpose of this appeal will be defeated. however, i would like to observe that the o.order1. the petitioners are the wife and husband. they filed o.p. no. 154 of 1994 in the city civil court, hyderabad, on 22-11-1994 to pass a decree dissolving the.marriage on the basis of mutual consent with the allegation that they have been, living separately for a period of more than two years and that there is no possibility of their reunion.2. in view of the time limit set out in subsection (2) of section 13b of the hindu marriage act, 1955, hereinafter referred to as 'the act', the learned iii-addl. judge, city civil court, hyderabad, fixed the date of appearance of the parties to 5-6-1955, i.e., after the expiry of six months. an application was filed to dispense with the observance of statutory period of six months for disposing of the original petition. as the said application was rejected by the learned iii-addl. judge, city civil court, hyderabad, the present revision petition is filed.3. sub-section (2) of section 13b of the act reads as follows: 13b. (1) xx xx xx xx xx (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 had 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. the learned counsel for the petitioners relying upon the decision of a division bench of this court in k. omprakash v. k. nalini, : air 1986 ap167 has strenuously contended that the provision as to time limit embodied in sub-section (2) of section 13b of the act is only directory and that in any case, it has no application to the exercise of jurisdiction by the appellate court. in other words, he submits, that the appellate court can relax the time limit and forthwith grant a decree of divorce on the basis of the application filed by both the parties. it is difficult to countenance this argument in view of the later division bench decision of this court in jakkula ventaka ramana murthy 1992 (3) andh lt 381 (db), which has been fairly brought to my notice by the learned counsel for the petitioners. that was a case in which a petition for decree of divorce by mutual consent was filed under section 13b(2) of the act on 20-7-1992 and it was posted to 20-1-1993 by the trial court. an application was filed to advance the o.p. to 22-7-1992. the lower court refused to waive the statutory requirement of minimum period of six months for passing a decree for divorce. against that order, an appeal was filed. it was contended by the learned counsel for the petitioners that the statutory time limit incorporated in section 13b(2) of the act does not inhibit the appellate court to grant a decree, if the appellate court is otherwise satisfied that the marriage should be dissolved. reliance was placed on the earlier division bench judgment in k. omprakash v. k. nalini : air 1986 ap167 . thus, it may be noted that the facts of the case and argumentsadvanced therein are almost similar to those in the present revision. the division bench consisting of m. n. rao and reddeppa reddy, jj., explained the ratio in om parkash case, as follows: 'xxxxx the ratio of the above case is that when an appeal is preferred to this court by either of the spouses and at the appellate stage if they seek a decree for divorce by mutual consent, this court need not adhere to the statutory time limit enacted in section 13b(2). that not being the fact situation in the instant case, we cannot agree with the submission of the learned counsel for the appellants. the division bench then held: the trial court has no power to alter the statutory time limit enacted in section 13b(2) of the hindu marriage act, 1955. it is well settled that when a statute ordains a particular procedure prescribing a certain time limit, the court is bound to comply with the same; by resorting to an intefpretative process, the object of the statute cannot be defeated. the reason for prescribing the time-limit in sub-section (2) of section 13b is to enable the parties to have introspection before finally opting for snapping the marital tie.' 5. the division bench judgment squarely governs the instant case and in view of the legal position declared by the division bench, i do not think that when the high court is seized of an appeal filed against the interlocutory order declining to dispense with the minimum statutory period of six months, the high court as an appellate court, can grant divorce decree even before the expiry of six months from the date of presentation of petition for divorce. it may be noticed that in k. omprakash's case, : air 1986 ap167 the request for dissolution of marriage on the basis of mutual consent came to be before the high court a number of years after the petition for divorce was presented and by that time, there was sufficient time for introspection. this is yet another reason why the decision in omprakash case cannot be followed in this case in preference to j.v. ramana murthy's case 1992 (3) andh lt 381 (db) (supra).6. the learned counsel for the petitioners has submitted that the observations of the earlier division bench are clear to the effect that the time limit prescribed under sub-section(2) of section 13b of the act is not mandatory, but it is only directory. no doubt, this principle laid down by the division bench has not been adverted to by the learned judges constituting the later division bench. but, no point will be served in referring the matter to a division bench or full bench for reconsideration on this ground inasmuch as it would be practically impossible to get a final pronouncement in the matter before the court is closed for summer vacation. if such reference is made, the very purpose of this appeal will be defeated.7. that apart, even if the provision is construed to be directory, it does not mean that the requirement of time limit should be dispensed with in all cases and the petition for divorce on the basis of mutual consent should be disposed of the moment the petition is filed. advisedly, for the reason stated by the division bench in j.v. ramana murthy's case, 1992 (3) andh lt 381 (db) (supra), the legislature has prescribed a minimum period of six months for taking up a petition for divorce on a mutual consent. even if such requirement is directory, it does not follow that the high court should ignore the time limit the moment a request is made by both the parties.8. in the instant case, the affidavit filed in support of the interlocutary application does not disclose any special reasons apart from what is stated in the original petition itself as to why the parties cannot wait even for six months or had irreparable prejudice will be caused if the time lag of six months is allowed to pass by. in this view of the matter also, i do not think that the order under revision warrants any interference. the civil revision petition is, therefore, dismissed. no costs. however, i would like to observe that the o.p. shall be positively taken up by the trial court on 5-6-1995 and orders be passed before the end of june, 1995.9. revision dismissed.

Judgment:
ORDER

1. The petitioners are the wife and husband. They filed O.P. No. 154 of 1994 in the City Civil Court, Hyderabad, on 22-11-1994 to pass a decree dissolving the.marriage on the basis of mutual consent with the allegation that they have been, living separately for a period of more than two years and that there is no possibility of their reunion.

2. In view of the time limit set out in subsection (2) of Section 13B of the Hindu Marriage Act, 1955, hereinafter referred to as 'the Act', the learned III-Addl. Judge, City Civil Court, Hyderabad, fixed the date of appearance of the parties to 5-6-1955, i.e., after the expiry of six months. An application was filed to dispense with the observance of statutory period of six months for disposing of the original petition. As the said application was rejected by the learned III-Addl. Judge, City Civil Court, Hyderabad, the present revision petition is filed.

3. Sub-section (2) of Section 13B of the Act reads as follows:

13B. (1) xx xx xx xx xx

(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 had 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. The learned counsel for the petitioners relying upon the decision of a Division Bench of this Court in K. Omprakash v. K. Nalini, : AIR 1986 AP167 has strenuously contended that the provision as to time limit embodied in sub-section (2) of Section 13B of the Act is only directory and that in any case, it has no application to the exercise of jurisdiction by the appellate Court. In other words, he submits, that the appellate court can relax the time limit and forthwith grant a decree of divorce on the basis of the application filed by both the parties. It is difficult to countenance this argument in view of the later Division Bench decision of this Court in Jakkula Ventaka Ramana Murthy 1992 (3) Andh LT 381 (DB), which has been fairly brought to my notice by the learned counsel for the petitioners. That was a case in which a petition for decree of divorce by mutual consent was filed under Section 13B(2) of the Act on 20-7-1992 and it was posted to 20-1-1993 by the trial court. An application was filed to advance the O.P. to 22-7-1992. The lower court refused to waive the statutory requirement of minimum period of six months for passing a decree for divorce. Against that order, an appeal was filed. It was contended by the learned counsel for the petitioners that the statutory time limit incorporated in Section 13B(2) of the Act does not inhibit the appellate court to grant a decree, if the appellate court is otherwise satisfied that the marriage should be dissolved. Reliance was placed on the earlier Division Bench judgment in K. Omprakash v. K. Nalini : AIR 1986 AP167 . Thus, it may be noted that the facts of the case and argumentsadvanced therein are almost similar to those in the present revision. The Division Bench consisting of M. N. Rao and Reddeppa Reddy, JJ., explained the ratio in Om Parkash case, as follows:

'xxxxx

The ratio of the above case is that when an appeal is preferred to this Court by either of the spouses and at the appellate stage if they seek a decree for divorce by mutual consent, this court need not adhere to the statutory time limit enacted in Section 13B(2). That not being the fact situation in the instant case, we cannot agree with the submission of the learned counsel for the appellants.

The Division Bench then held:

The trial court has no power to alter the statutory time limit enacted in Section 13B(2) of the Hindu Marriage Act, 1955. It is well settled that when a Statute ordains a particular procedure prescribing a certain time limit, the Court is bound to comply with the same; by resorting to an intefpretative process, the object of the statute cannot be defeated. The reason for prescribing the time-limit in sub-section (2) of Section 13B is to enable the parties to have introspection before finally opting for snapping the marital tie.'

5. The Division Bench judgment squarely governs the instant case and in view of the legal position declared by the Division Bench, I do not think that when the High Court is seized of an appeal filed against the interlocutory order declining to dispense with the minimum statutory period of six months, the High Court as an appellate court, can grant divorce decree even before the expiry of six months from the date of presentation of petition for divorce. It may be noticed that in K. Omprakash's case, : AIR 1986 AP167 the request for dissolution of marriage on the basis of mutual consent came to be before the High Court a number of years after the petition for divorce was presented and by that time, there was sufficient time for introspection. This is yet another reason why the decision in Omprakash case cannot be followed in this case in preference to J.V. Ramana Murthy's case 1992 (3) Andh LT 381 (DB) (supra).

6. The learned counsel for the petitioners has Submitted that the observations of the earlier Division Bench are clear to the effect that the time limit prescribed under sub-section(2) of Section 13B of the Act is not mandatory, but it is only directory. No doubt, this principle laid down by the Division Bench has not been adverted to by the learned judges constituting the later Division Bench. But, no point will be served in referring the matter to a Division Bench or Full Bench for reconsideration on this ground inasmuch as it would be practically impossible to get a final pronouncement in the matter before the court is closed for Summer Vacation. If such reference is made, the very purpose of this appeal will be defeated.

7. That apart, even if the provision is construed to be directory, it does not mean that the requirement of time limit should be dispensed with in all cases and the petition for divorce on the basis of mutual consent should be disposed of the moment the petition is filed. Advisedly, for the reason stated by the Division Bench in J.V. Ramana Murthy's case, 1992 (3) Andh LT 381 (DB) (supra), the Legislature has prescribed a minimum period of six months for taking up a petition for divorce on a mutual consent. Even if such requirement is directory, it does not follow that the High Court should ignore the time limit the moment a request is made by both the parties.

8. In the instant case, the affidavit filed in support of the interlocutary application does not disclose any special reasons apart from what is stated in the original petition itself as to why the parties cannot wait even for six months or had irreparable prejudice will be caused if the time lag of six months is allowed to pass by. In this view of the matter also, I do not think that the order under revision warrants any interference. The civil revision petition is, therefore, dismissed. No costs. However, I would like to observe that the O.P. shall be positively taken up by the trial Court on 5-6-1995 and orders be passed before the end of June, 1995.

9. Revision dismissed.