Visalakshi Vs. K.P. Sivaraman - Court Judgment

U.L. Bhat, J.

1. The appellant is the above appeal who is thepetitioner in the two Miscellaneous Petition is the wife of the respondent.

2. They were married on 17-6-1982 and fell out in 1986 and thereafterthey have been residing separately. In June 1986, both parties together filed apetition before the Subordinate Judge's Court, Hosdurg Under Section 13 ofthe Hindu Marriage Act, 1955 praying for a decree of divorce based on theirconsent. The case was adjourned for the statutory period of six months at theend of which the wife realied from the consent and the petition was dismissed.In 1987 the husband filed OP 32 of 1987 before the Subordinate Judge's Court,Hosdurg seeking decree of divorce Under Sections 13(1)(1) and 13(1)(a) that is,on grounds of adultery and cruelty. The petition was resisted by the wife, butwas allowed by learned Subordinate Judge on the ground of adultery underSection 13(1)(1) of the Act. The ground of cruelty urged was negatived. Thedecree for divorce was passed on 30-1-1988. That decree is challenged by thewife in the appeal filed on 14-3-1988. The appeal has been pending before usfor over three years. On 2-4-1991 the parties filed CMP 1829 of 1991 underorder XXIII Rules 3 C.P.C. submitting that they have entered into a settlementand the appeal may be allowed in terms of the compromise and OP 32 of 1987is dismissed. The compromise petition states that in full satisfaction of all themarital claims-of the wife and all claims arising in relation in the decree ofdivorce and towards the future maintenance of their minor child, the wife hasalready received a cheque for Rs, 23,000/- issued by the husband and drawn onthe Hosdurg Service Co-operative Bank on 20-3-1991. Learned Counsel representing the wife submits that the cheque has already been encashed in pursuanceof the compromise. Parties have also filed CMP 1830 of 1991 Under Section13-B of the Act stating that they have been residing separately since June, 1986,that it has become impossible for them to re-unite and live as husband and wifeand they agree for a decree for divorce being passed in terms of Section 13B ofthe Act. They also state that due provision has already been made for theclaims of the wife in connection with the marriage.

3. Having regard to the nature of the contention raised by the partiesbefore the Trial Court and before us, we are satisfied that the compromise petition and the petition Under Section 13B of the Act filed before us are the resultof voluntary consent of both the parties and such content has not been obtainedby force, fraud or undue influence and also that there is no collusion betweenthe parties.

4. The question naturally arising is whether this Court can pass adecree Under Section 13B of the Hindu Marriage Act without following theformalities prescribed in the provision. According to Section 13B on a petitionbeing so presented alleging that spouses have been living separately for a periodof one year or more and that they have not been able to live together and thatthey have mutually agreed that the marriage should be dissolved, the Courtshall, on being satisfied, after hearing the parties and after making such enquiries which it thinks fit, that a marriage has been solemnized and that theaverments in the petition are true, pass a decree of divorce on the motion ofboth the parties made not earlier than six months after the date of the presentation of the petition and not later than 18 months after the said date providedthat the petition is not withdrawn in the meantime.

5. The provision has been enacted to water down the rigour of therequirements of the provisions of the Hindu Marriage Act and to enable spousesto part amicably where the marriage has broken down and the spouses cannotbe reconciled-Break-down of marriage has not been accepted as a groundsufficient to pass decree for divorce before the incorporation of Section 13B.The purpose of the provision is obviously to save the spouses from the ruinousconsequence of marriages which have broken down and cannot be saved. Thelegislative policy disclosed in the requirement that the Court should wait for sixmonths is to give an opportunity to the parties to see if the marriage can besaved. That is why the legislative prescribed postponement of the passing theorder on the petition filed Under Section 13B of the Act. In cases like thepresent one where the parties are before the appellate Court after having foughta battle in the Trial Court and where the Court is satisfied that the parties hadsufficient time to think over their own future and have come to a definite conclusion that the marital relationship has to be terminated in our opinion, theCourt should take a liberal view of the procedural requirements and refrainfrom insisting on the waiting period of six months. The parties have beenresiding separately for the last over five years and the wife has already encashedthe cheque given by the husband in terms of the compromise. This is yetanother reason which would persuade the Court not in subject the parties to afresh waiting period of six months. We find that such a liberal view has beentaken by a Division Bench consisting of Justice D.S. Tewatia and Justice M.M.Puncbhi (as he then was) of the Punjab and Haryana High Court in KrishnaKhetarpal v. Satish Lai, (AIR 1987 P&H; 191). In the light of the aboveprinciple, and in the peculiar facts and circumstances of the case, we are satisfied that this Court is not only entitled to pass a decree, but has a duty to pass adecree without insisting on the waiting period of six months.

6. Accordingly, we record the compromise in CMP 1829 of 1991. Weallow CMP 1830 of 1991 and pass a decree for dissolution of marriage underSection 13B of the Hindu Marriage Act, 1955. We also set aside the decree inOP 32 of 1987, dismiss OP 32 of 1987 and allow the appeal, directing the parties to bear costs throughout.