Dhanjit Vadra Vs. Smt. Beena Vadra - Court Judgment

Excerpt:
(1) hindu marriage act, 1955 - sections 13(1) (ia) and 13 b(1) and (2)--whether proceedings pending under section 13(1) (ia) may be converted into section 13b proceedings--six month waiting period--whether mandatory or directory ;(2) civil procedure code, 1908 - order vi rule 17--whether amendment of plaint could operate prospectively.;allowing the revision petition and appeal, the court;1. in proceedings under section 13(1) (ia) when an application under section 13b is moved fulfillling all the requirements of sub-section (1) the court, could treat this application as a motion for the purposes of sub-section (2) also, and on the basis of the material already on record, the court could pass a decree for divorce by mutual consent under section 13-b of the act.;2. the requirement of a motion within the time specified under sub-section (2) of section 13-b is merely a matter of formality. a decree for divorce by mutual consent can be granted without waiting for the period of six months specified under sub-section (2) of section 13-b if a court is satisfied in a case that the requirement of sub-section (1) of section 13-b is fulfillled.;3. in view of the text, context, purpose and design sub-section (2) of section 13 is a part of mere procedure and is, thereforee, directory. the six months time fixed by section 13-b (2) is not a rule relating to the jurisdiction of the court to entertain a petition for divorce by consent. the question of jurisdiction is dealt with by sub-section (1) which must be strictly complied with.;4. an amendment to take into consideration subsequent events would necessarily be effective from a future date and not the date of the suit. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - in view of the exclusive and sole custody of the minor child with the mother since 26th of june, 1984, as also her financial capacity to independently maintain and educate the child, it was acknowledged that it would be clearly in the welfare of the minor child that she should continue to remain in exclusive and sole custody of her mother and the parties agreed 'that it will be the sole liability and responsibility of the respondent to maintain the said minor child shaista and also to look after the education and all other interests of the said minor child including her marriage, without any interference and / or any hindrance whatsoever by the petitioner and also that all expenses etc. (b) 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 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. it is now well established by a decision of a division bench of this court in the case of jawaharlal mamtani v. this decree was challenged, inter alia, on the ground that the joint application made in the trial court could not be acted upon because the motion under sub-section (2) of section 13-b could have been made not earlier than six months after the filing of the joint application filed under sub-section (i) whereas joint application as well as motion under sub-section (2) of section 13 had been made by a single application. 13-b if a court is satisfied in a case that the requirement of sub-section (1) of section 13b is fulfillled. in other words, the time specified in sub-section (2) can be waived if the court is satisfied that the parties 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 as envisaged by sub-section (1) of section 13-b of the act. a division bench of the andhra pradesh high court felt that it would be in best interest of the parties to order the dissolution of the marriage, as it was felt that the marriage between the parties had broken irretrievably and there was no reasonable chance for their reunion, as they had been living apart for the last four and a half years. the division bench observed that section 13-b has radically changed the old concept of hindu marriage being a sacrament by treating it as an ordinary form of contract which the parties can enter into and put an end to like any other contact by mutual consent and that the liberalizing trend of law in the matter of granting divorce by consent cannot be lost sight of by courts in interpreting this section. 18. in the present case, in view of the effects made from time to time for conciliation between the parties and the result thereof, the averments made in the joint application under section 13-b, the terms of settlement arrived at and acted upon by the parties, and the joint statements recorded on 5th of september 1989, i am satisfied that the parties have been living separately for a period of more than one year, that they have not been able to live together, and that they have, thereforee, mutually agreed that the marriage should be dissolved. i am also satisfied that there is no collusion between the parties. in these circumstances, i am of the opinion that the settlement between the parties is a prudent course of action and that the terms agreed upon are for the mutual benefit of the parties as also in the best interest and for the welfare of the minor child.1. by this common judgment, i propose to dispose of c.r. 1400/89 and fao 264/89 filed by the husband dhanjit praying for modification of an order dated 5th of sept., 1989 and for setting aside an order made by ms. kanwal inder, addl. district judge, delhi on 6th of nov., 1989, because both the impugned orders arise out of one petition filed by the husband under s. 13 of the hindu marriage act, 1955, hereinafter referred to as the act, against the wife beena for dissolution of their marriage by a decree of divorce on the ground of cruelty.2. the parties were married according to hindu rites on 12th of march 1982. a female child shaista was born from the wedlock on 4th of july 1983. differences arose between the parties. they started living separately from each other from 5th of june 1984. they have not been able to live together since then. the petition under s. 13 of the act was filed by the husband on 11th of february, 1985.3. during the proceedings, efforts were made, before framing issues as also thereafter, to bring about reconciliation between the parties but in vain. on 6th of january 1988, 21st of march 1989 and 5th of may 1989, statement of the husband was recorded as p.w. 2. thereafter, when the case was fixed for his remaining evidence, the parties filed two joint applications on 5th of sept. 1989. one under order 6, rule 17 and s. 151 of the code of civil procedure, 1908 praying that the petition for divorce filed by the husband may be treated as a petition under subsection (1) of s. 13-b of the act, and the other under sub-section (2) of s. 13-b for a decree of divorce by mutual consent.4. it was stated in the application for amendment that the marriage between the parties had broken down completely and irretrievably and 'now there is absolutely no chance of any reconciliation between the parties or their living together'. it was further averred, 'that both the parties hereby withdraw all the allegations against each other and they mutually agree that their marriage may be dissolved by a decree of divorce'.5. in the other applications, moved under s. 13-b(2) of the act, it was further stated that the parties had mutually and amicably settled all the other disputes between them, that almost all the articles belonging to the wife had been returned to her and for the others she had been paid a sum of rs. 5 lacs by a bank draft, and that nothing was due to the wife 'on account of strictly dhana and all other claims'. with reference to the financial and earning capacity of the parties, the wife agreed and declared that she will not claim any permanent alimony and maintenance from the husband at any time. in view of the exclusive and sole custody of the minor child with the mother since 26th of june, 1984, as also her financial capacity to independently maintain and educate the child, it was acknowledged that it would be clearly in the welfare of the minor child that she should continue to remain in exclusive and sole custody of her mother and the parties agreed 'that it will be the sole liability and responsibility of the respondent to maintain the said minor child shaista and also to look after the education and all other interests of the said minor child including her marriage, without any interference and / or any hindrance whatsoever by the petitioner and also that all expenses etc. in relation thereto and in connection therewith shall be borne by the respondent alone and that the petitioner shall in no way be liable for the same and also that no claim whatsoever shall even be made by anyone whomsoever against the petitioner for the same'. in view of this comprehensive settlement between the parties, they prayed for a decree of divorce under s. 13-b of the act and for a provision to be made in the decree with regard to permanent alimony and maintenance, custody of the child as also disposal of property as envisaged by ss. 25, 26 and 27 of the act.6. by the first impugned order dated 5th of sept 1989, the trial court 'allowed' the application for amendment under 0. 6, r. 17, c.p.c. it is clear from this order that the court again made an attempt to bring about reconciliation between the parties but the parties were not agreeable to live together and pressed the second application under s. 13-b of the act. thereforee, the court recorded their statements in which both the parties reiterated the position stated in the joint application and further requested that the earlier petition under sec. 13(1)(ia) be treated as the first motion and the 'period of six months may kindly be waived'. after recording the statements and hearing arguments, however, the court directed the case to be put up on the next day for orders.7. on the 6th of november, 1989, the trial court made the second impugned order rejecting the joint petition of the parties under s. 13-b of the act as it felt that the order made just a day earlier on the application under 0.6 , r. 17, c.p.c. 'nowhere states from which date it has to take effect', and 'it is a usual rule that once amendment has been allowed, it relates back to the date of the filing of the suit'. on this basis, the court proceeded to consider 'maintainability of the amended pleas' and came to the conclusion that 'no case u/s. 13-b(1) of the h.m. act was made out at the time of filing of the original petition and in these circumstances question of allowing second motion petition under s. 13-b(2) of the h.m. act by waiving the six months period does not arise'.8. confronted with these two orders, the husband has preferred the revision petition as also the abovementioned appeal to this court, to modify the first order dated 5th of september, 1989 so as to give effect to the amendment from the day when the order was made, to set aside and reverse the second order dated 6th of november, 1989, and to pass a decree for dissolution of the marriage under s. 13-b of the act. the respondent-wife has supported the prayers made in the revision petition as also in the appeal. the trial court record was summoned at the instance of the parties and i have perused the same.9. section 13-b was inserted in the act by an amendment in 1976. it reads as follows:-13-b. 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, where 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. (b) 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 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.'10. it is no doubt true that the ground envisaged in section 13-b for divorce by mutual consent was not available to the parties on 1lth of february 1985 when the husband filed the petition for divorce on the ground of cruelty under section 13(i)(ia) of act because the parties had been living separately since only 5th of june 1984 whereas the said ground could be availed of when the parties have been living separately for a period of one year or more. but this ground was certainly available to the parties on 5th of september 1989 when they moved the abovementioned two applications.11. a bare perusal of the application for amendment under order 6, rule 17, c. p.c. as also of the petition under section 13-b(2) of the act shows that the agreement between the parties to separate as also the terms with regard to alimony. maintenance, custody of the child and disposal of property were negotiated and settled only during the pendency of the divorce petition. these were obviously subsequent events. it is now well established by a decision of a division bench of this court in the case of jawaharlal mamtani v. bhagchand motumal mamtani, : air1981delhi338 that an amendment to take into consideration subsequent events would necessarily be effective from a future date and not the suit. in view of the peculiar circumstances of the present case the subsequent events which occurred during the tendency of the proceedings, the nature thereof, as also the real intention of the parties expressed in the two applications, the trial court ought to have allowed the amendment prospectively with effect from the date when the first impugned order was made. thereforee, the order dated 5th of september 1989 is hereby modified so as to allow amendment of the divorce petition to convert it into one for divorce by mutual consent under sub-section (1) of section 13-b of the act with effect from the date of the order.12. even otherwise, the application under section 13-b of the act, moved on 5th of september 1989, fulfillled all the requirements of sub-section (1) of section 13-b of the act. the trial court, in my opinion, could have treated this application as a motion for the purposes of sub-section (2) also, and, on the basis of the material on record, the court ought to have passed a decree for divorce by mutual consent under section 13-b of the act.13. in jagmohan ahuja v. smt. sudesh, 1979 hlr 303, in a civil revision petition, the punjab & haryana high court converted a petition under section 13 into one for divorce by mutual consent under section 13-b of the act, on oral request of the parties, without a formal application, as it was felt that the parties were not likely to continue as husband and wife. in another case of smt. joginear kaur v. mohan singh 1979 hlr 309, a division bench of the punjab and haryana court allowed a miscellaneous application filed in an appeal and allowed the original divorce petition to be amended to treat the same as petition under section 13-b of the act and granted a decree for dissolution of the marriage by mutual consent on the basis of an agreement reached between the parties during the pendency of the appeal. in prem lata v. yash pal (1985) 1 hlr 148, in an appeal arising out of a decree for restitution of conjugal rights under section 9 of the act, the parties entered into a compromise and on the basis of the statements made by them, high court treated a miscellaneous application as a petition under section 13-b of the act and passed a decree of divorce under section 13-b of the act. in lalit balintia v. kirana bala (1985) 2 hlr 37, the parties to the appeal made an application stating that they had executed an agreement between themselves and prayed for a decree under section 13-b of the act. statements of the parties were recorded and on the basis of the agreements between them, the court granted a decree.14. in santosh kumari v. virender kumar, , an appeal arose out of a decree granted by the trial court under section 13-b of the act on the basis of an application jointly filed by the parties for that purpose. this decree was challenged, inter alia, on the ground that the joint application made in the trial court could not be acted upon because the motion under sub-section (2) of section 13-b could have been made not earlier than six months after the filing of the joint application filed under sub-section (i) whereas joint application as well as motion under sub-section (2) of section 13 had been made by a single application. lodha, j. rejected this challenge and upheld the decree passed by the district judge. it was held that when the parties requested the court to treat the pending petition as one for grant of a decree of divorce by mutual consent 'they must be deemed to have asked for amendment of that application and when the court acted upon it, it must be deemed to have allowed the amendment'. since it was abundantly clear that the parties did not want to live together and were desirous of getting a decree of divorce, it was held: 'in these circumstances, the insistence on the form of application would be improper and unnecessary because if the decree is refused on such a ground the agony between the parties will continue'. it was further observed, apart from the interpretation of section 13b(2) 'that when it appears to the satisfaction of the court that it is impossible for the parties to live together and a decree for divorce by mutual consent would be in the interest of both of them, it need not attach under importance to the form of application, or the time within which it has been made.'15. in the case of jarnali kaur v. bant singh, (1987) 1 hlr 75 (p&h;) an application originally filed by the wife was 'converted' into an application for decree of divorce by mutual consent, statements of parties were recorded and on the same day a decree was passed dissolving the marriage of the parties without keeping the matter pending for a period of six months. it is stated in the judgment it was being so done 'as more than this prescribed period has already been spent by the parties for rethinking on the question of sustaining the marriage or dissolving it'. it was further observed 'it would be futile to prolong their agony by allowing another six months period to pass before a decree for divorce is granted'.16. from these various decisions of different high court, it is clear that the requirement of a motion within the time specified under sub-section (2) of section 13-b is merely a matter of formality and that a decree for divorce by mutual consent can be granted without waiting for the period of six months specified under sub-section (2) of s. 13-b if a court is satisfied in a case that the requirement of sub-section (1) of section 13b is fulfillled. in other words, the time specified in sub-section (2) can be waived if the court is satisfied that the parties 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 as envisaged by sub-section (1) of section 13-b of the act.17. in k. omprakash v. k. nalini, : air1986ap167 in an appeal preferred by the husband against an order of the trial court dismissing his application under section 13 of the act, the parties filed a compromise memo signed by both of them praying for a decree for divorce by mutual consent ignoring the allegations and the counter-allegations earlier made by the parties during the trial. a division bench of the andhra pradesh high court felt that it would be in best interest of the parties to order the dissolution of the marriage, as it was felt that the marriage between the parties had broken irretrievably and there was no reasonable chance for their reunion, as they had been living apart for the last four and a half years. but the division bench was confronted with the question whether section 13-b(2) of the act permits the granting of such a decree. the division bench observed that section 13-b has radically changed the old concept of hindu marriage being a sacrament by treating it as an ordinary form of contract which the parties can enter into and put an end to like any other contact by mutual consent and that the liberalizing trend of law in the matter of granting divorce by consent cannot be lost sight of by courts in interpreting this section. it was observed that the time specified in sub section (2) of s. 13-b 'is the last hope of the legislature for saving the marriage. the intention of the legislature is to provide a minimum of six months for rethinking of the parties'. in context, the question considered by the bench was whether the legislature intended that section 13-b(2) be treated as mandatory provision of law or merely as a directory provision. in view of the text, context, purpose and design of the said provision, it was held that sub-section (2) of section 13 is a part of mere procedure and is, thereforee, directory. it has been explained in this judgment that the six months' time fixed by section 13-b(2) is not a rule relating of the jurisdiction of the court to entertain a petition for divorce by consent, and that the question of jurisdiction is dealt with by subsection (1) which must be strictly complied with and sub-section (2) of section 13-b is a part of mere procedure. further, it has been reiterated that a procedural provision must be interpreted as a handmaid of justice in order to advance and further the interest of justice. further, it has been explained in this judgment that section 13-b(2) does not impose any fetter on the powers of the court to grant instant decree of divorce.18. in the present case, in view of the effects made from time to time for conciliation between the parties and the result thereof, the averments made in the joint application under section 13-b, the terms of settlement arrived at and acted upon by the parties, and the joint statements recorded on 5th of september 1989, i am satisfied that the parties have been living separately for a period of more than one year, that they have not been able to live together, and that they have, thereforee, mutually agreed that the marriage should be dissolved. i am also satisfied that there is no collusion between the parties. in these circumstances, i am of the opinion that the settlement between the parties is a prudent course of action and that the terms agreed upon are for the mutual benefit of the parties as also in the best interest and for the welfare of the minor child.19. for the above reasons, the first impugned order dated 5th of september 1989 is modified so as to allow amendment of the original and to treat it as one for divorce by mutual consent under section 13-b of the act effective from the date of that order; the second impugned order dated 6th of november 1989 is set aside and a decree of divorce is hereby passed declaring the marriage to be dissolved under section 13-b of the act. further, orders are hereby passed, in respect of custody of the minor child shaista, and regarding alimony and disposal of property of the parties, in accordance with the terms and conditions of settlement set out in the joint application under section 13-b of the act and it is directed that the same shall form part of the decree.20. the civil revision petition and the appeal are accordingly allowed. no costs.21. order accordingly.