SC Judgement on HMA24 - Wife working no maintenance

Bench: T Chatterjee, H Dattu
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1789-1790 OF 2009
(Arising out of SLP(C) NOS. 24589-24590 of 2007) Anu Kaul ........ Appellant Versus
Rajeev Kaul ........Respondent ORDER
Leave granted.
2) In the appeal filed by the respondent-husband before the High Court of Punjab and Haryana, being aggrieved by the judgment and decree passed by Addl. District Judge (Ad-hoc), Fast Track Court No.3, Faridabad, dated 04.06.2005, the appellant herein had filed an application under Section 24 of Hindu Marriage Act, 1955, for the grant of interim maintenance of Rs. 10,000/- (Rupees Ten Thousand only) and the litigation expense of Rs. 22,000/- (Rupees Twenty Two Thousand only). The application is partly allowed by the Court by its 1
order dated 23.08.2006, by granting an amount of Rs.10,000/- towards litigation expense and a sum of Rs.2,000/- for the maintenance of the minor child living with her. The Review Petition is also dismissed by the Court vide its order dated 21.03.2007, leaving it open to the appellant/applicant to claim interim maintenance before an appropriate forum in the capacity as a Guardian of the child.
3) Challenging both the orders, the appellant-wife is before us in these appeals.
4) Though notice of special leave petition is served on the respondent- husband, for the reason best known to him, has not entered appearance either in person or through his counsel. 5) Marriage between the parties and birth of the female child Karmistha Kaul is not in dispute. The assertion of the appellant in the application filed under Section 24 of Hindu Marriage Act, 1955 that the respondent is working as a Senior Head of Mukund Steel Ltd., having its head office at Mumbai and drawing a salary of Rs.40,000/- per month and is entitled to claim perks for the education of his children was not denied by the respondent by filing his counter affidavit or reply statement.
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6) In the application filed, the appellant admits that she is employed and drawing a salary of Rs.9,000/- per month. However, she asserts, she has to pay an amount of Rs.3,000/- by way of rent to the tenanted premises which she is presently occupying in view of the lis between the parties. She has also stated, that, Kumari Karmisatha Kaul is now grown up and she is studying in Senior School and due to insufficient funds, her education is being hampered.
7) A sermon on moral responsibility and ethics, in our opinion for disposing of this appeal may not be necessary, since the respondent has not disputed the assertion of the appellant. However, since the appellant is employed and is drawing a salary of Rs.9,000/- per month, we do not intend to enhance the interim maintenance awarded to her by the High Court during the pendency of the appeal filed by the husband. However, taking into consideration the child being the daughter of highly placed officer, the exorbitant fee structure in good Schools and the cost of living, we deem it proper to direct the respondent to pay a sum of Rs.5,000/- per month to the applicant commencing from 1st of April, 2009 for the maintenance of the minor child during the pendency of the appeals before the High Court. 8) The appeals are disposed of accordingly

No Interim/Maintenance for Capable, Working Women- Madhya Pradesh High Court

Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24/3/2000
ORDER
   J.G. Chitre, J.
   1. The petitioner Mamta Jaiswal has acquired qualification as MSc. M.C. M.Ed, and was working in Gulamnabi Azad. College of Education, Pusad, Distt. Yeotmal (MHS). The husband Rajesh Jaiswal is sub−engineer serving in Pimampur factory. The order which is under challenge by itself shows that Mamta Jaiswal, the wife was earning Rs. 4,000/− as salary when she was in service in the year 1994. The husband Rajesh Jaiswal is getting salary of Rs. 5,852/−. The Matrimonial Court awarded alimony of Rs. 800/− to Mamta Jaiswal per month as pendente lite alimony, Rs. 400/− per month has been awarded to their daughter Ku, Diksha Jaiswal. Expenses necessary for litigation has been awarded to the tune of Rs. 1,500/−. The Matrimonial Court has directed Rajesh Jaiswal to pay travelling expenses to Mamta Jaiswal whenever sheattends Court for hearing of them matrimorial petition pending between them. Matrimonial petition has been filed by husband Rajesh Jaiswal for getting divorce from Mamta Jaiswal on the ground of cruelty. This revision petition arises on account of rejection of the prayer made by Mamta Jaiswal when she prayed that she be awarded the travelling expenses of one adult attendant who is to come with her for attending Matrimonial Court.
   2. Mr. S.K. Nigam, pointed out that the petition is mixed natured because if at all it is touching provisions of Section 26 of Hindu Marriage Act, 1955 (hereinafter referred to as Act for convenience) then that has to be filed within a month. Mr. Mev clarified that it is a revision petition mainly meant for challenging pendente lite alimony payable by the husband in view of Section 24 of the Act. He pointed out the calculations of days in obtaining the certified copies of the impugned order. In view of that, it is hereby declared that this revision petition is within limitation, entertainable, keeping in view the spirit of the Act and Section 24 of it.
   3. A wife is entitled to get pendente lite alimony from the husband in view of provisions of Section 24 of the Act if she happens to be a person who has no independent income sufficient for her to support and to make necessary expenses of the proceedings. The present petitioner, the wife, Mamta Jaiswal has made a . prayer that she should be paid travelling expenses of one adult member of her family who would be coming to Matrimonial Court at Indore as her attendant. Therefore, the question arises firstly, whether a woman having such qualifications and once upon a time sufficient income is entitled to claim pendente lite alimony from her husband in a matrimonial petition which has been filed against her for divorce on the ground of cruelty. Secondly, whether such a woman is entitled to get the expenses reimbursed from her husband if she brings one adult attendant alongwith her for attending the Matrimonial Court from the place where she resides or a distant place.
   4. In the present case there has been debate between the spouses about their respective income. The husband Rajesh has averred that Mamta is still serving and earning a salary which is sufficient enough to allow her to support herself. Wife Mamta is contending that she is not in service presently. Wife Mamta is contending that Rajesh, the husband is having salary of Rs. 5,852/− per month. Husband Rajesh is contending that Rs. 2,067/− out his salary, are deducted towards instalment of repayment of house loan. He has contended that Rs. 1,000/− are spent in his to and fro transport from Indore to Pithampur. He has also detailed by contending that Rs. 200/− are being spent for the medicines for his ailing father. And, lastly, he has contended that by taking into consideration these deductions as meagre amount remains available for his expenditure.
   5. It has been submitted that Mamta Jaiswal was getting Rs. 2,000/− as salary in the year 1994 and she has been removed from the job of lecturer. No further
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details are available at this stage. Thus, the point is in a arena of counter allegations of these fighting spouses who are eager to peck each other.
   6. In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted: Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get pendente lite alimony at higher rate from other spouse in such condition ? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself Or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a bug question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ’dole’ to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice verssa also. If a husband well qualified, sufficient enough to earn, site idle and puts his burden on the wife and waits for a ’dole’ to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself That cannot be treated to be aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardising their hard earned income by toiling working hours.
   7. In the present case, wife Mamta Jaiswal, has been awarded Rs. 800/− per month as pendente lite alimony and has been awarded the relief of being reimbursed from husband whenever she makes a trip to Indore from Pusad, Distt. Yeotmal for attending Matrimonial Court for date of hearing. She is well qualified woman once upon time abviously serving as lecturer in Education College. How she can be equated with a gullible woman of village ? Needless to point out that a woman who is educated herself with Master’s degree in Science, Masters Degree in Education,. would not feel herself alone in travelling from Pusad to Indore, when atleast a bus service is available as mode of transport. The sumbission made on behalf of Mamta, the wife, is not palatable and digestable. This smells of oblique intention of putting extra financial burden on the husband. Such attempts are to be discouraged.
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   8. In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarelling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendente lite alimony and extra expenditure has to be discouraged. Even then, if the spouses do not think of amicable settlement, the Matrimonial Courts should dispose of the matrimonial petitiorisas early as possible. The Matrimonial Courts have to keep it in mind that the quarells between the spouses create dangerous impact on minds of their offsprings of such wedlocks. The offsprings do not understand as to where they should see ? towards father or towards mother ? By seeing them both fighting, making allegations against each other, they get bewildered. Such bewilderedness and loss of affection of parents is likely to create a trauma on their minds and brains. This frustration amongst children of tender ages is likely to create complications which would ruin their future. They cannot be exposed to such danger on account of such fighting parents.
   9. In the present case the husband has not challenged the order. Therefore, no variation or modification in it is necessary though this revision petition stands dismissed. The Matrimonial Court is hereby directed to decide the matrimonial petition which is pending amongst these two spouses as early as possible. The Matrimonial Court is directed to submit monthwise report about the progress of the said matrimonial petition to this Court so as to secure a continuous, unobstructed progress of matrimonial petition. No order as to costs. The amount of pendente lite alimony payable to Mamta Jaiswal by husband Rajesh Jaiswal should be deposited by him within a month by counting the date from the date of order. The failure on this aspect would result in dismissal of his matrimonial petition. He should continue payment of Rs. 400/− per month to his daughter Ku. Diksha Jaiswal right from the date of presentation of application of her maintenance i.e. 14.5.1998. That has to be also deposited within a month. He may take out sufficient money for that from his savings or take a loan from some good concern or loan granting agencies. Failure in this aspect also would result in dismissal of his petition. C.C.

No Maintenance For Working Women

Madras High Court

Manokaran @ Ramamoorthy vs M. Devaki on 21 February, 2003

Equivalent citations: AIR 2003 Mad 212, I (2003) DMC 799, (2003) 1 MLJ 752

Author: P Sathasivam

Bench: P Sathasivam

ORDER P. Sathasivam, J. 1. Aggrieved by the order of the Principal Family Court, Madras dated 25-7-2002, made in I.A. No. 1058/2001 in O.P. No. 1310/2000, granting interim maintenance at the rate of Rs.750/- per month and litigation expenses of Rs.1,500/-, the husband has preferred the above Revision under Article 227 of the Constitution.
2. The petitioner/husband has preferred the said O.P. for divorce under Section 13(1)(1a) and (1b) of the Hindu Marriage Act. Pending the said petition, the wife/respondent herein has filed I.A. No. 1058/2001 claiming interim maintenance at the rate of Rs.2,000/- per month and Rs.5,000/- towards litigation expenses under Section 24 of the Hindu Marriage Act. The said application was resisted by the husband stating that she is working in a private concern and drawing a salary of Rs.4,500/- per month. It is also stated that he is earning only Rs.2000/- per month. Before the Family Court, salary certificate of the husband dated 10-6-2002 has been marked as Ex.R-1. Based on Ex.R-1, after finding that he is earning Rs.70/- per day by working in Senthil Auto Garage, the Family Court has concluded that the wife is entitled to interim maintenance at the rate of Rs.750/- per month from the date of petition till the disposal of O.P. and also awarded Rs.1,500/- towards litigation expenses.
3. The only question to be considered in this Revision is whether the wife/respondent herein has made out a case for interim maintenance in terms of Section 24 of the Hindu Marriage Act.
4. Mr. N. Manokaran, learned counsel for the petitioner, after drawing my attention to Section 24 of the said Act and the admission of the wife in the counter statement filed in the main petition viz., O.P. No. 1310/2000, would contend that since she is earning sizeable income and in view of the fact that the petitioner/husband is getting only Rs.2000/- per month, the Family Court has committed an error in granting interim maintenance and litigation expenses.
5. There is no dispute that the petition has been filed by the respondent/wife claiming maintenance pendente lite and expenses of the proceedings under Section 24 of the Hindu Marriage Act. Section 24 reads thus:
"24. Maintenance pendente lite and expenses of proceedings.- Where in any proceedings under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."
The above provision would show that for grant of maintenance pendente lite, the party should not have sufficient independent income for her/his support. In other words, if it is found that the applicant has found sufficient income for his/her support, no amount can be allowed as maintenance pendente lite as per Section 24 of the Act. While construing the very same provision in similar circumstance, A.S. Venkatachamoorthy, J., in KUMARESAN v. ASWATHI [(2002) 2 M.L.J. 760 has arrived a similar conclusion. Now I shall consider whether the respondent/wife has any independent income which is sufficient for her survival and for the proceedings. In para 10 of the counter statement filed by the wife in O.P. No. 1310/2000, she herself admitted that, .....Now the respondent (wife) had got her present job in private body and running her life with the salary and staying with her brother...". The above statement shows that she is employed in a private concern, getting salary and staying with her brother. In the application for interim maintenance, the husband has filed a counter affidavit wherein he has specifically stated that his wife is drawing a salary of Rs.4,500/- from a private concern. In para 5 of the counter affidavit it is stated that, "5. The respondent denies all the allegations in para 5 and put the petitioner strict proof of the same. The averment about I am liberally suffering without financial assistants is put to strict proof since this petitioner is working in the organization Kumari Neruvanam at No. 40, Venkat Narayanan Road, T. Nagar, Chennai 600 017, and drawing a salary of Rs.4500/- she also disclosed this before the All Women Police Station, Thousand Lights, and this petitioner also admitted in her counter statement that she is working in private and running her life. But contradictory to her statement in counter statement now this petitioner come forward with a plea that she is without financial assistance. This petitioner is working as typist and main organizer for a programme in Neingalum Pachalar Agalam a programme telecaste in RAJ TV during Sunday 8.00 A.M, from her company Kumari Neruvanam. The averment about that this respondent is owner of the "Venkataswari Turning Works" at Muthumariamman Koil Street, Anna Nagar, Chennai-600 040 is put to strict proof since this respondent is not the owner of the said company and A. Loganathan is the owner of the said Turning works and this respondent is working in Senthil Auto Garage at Annai Sathya Nagar, Anna Nagar (East) Chennai-600 102, and drawing a salary of Rs.2000/- and this respondent need not to give any monetary assistance to the petitioner for her claim."
The above averment shows that the petitioner herein/husband is working in Senthil Auto Garage, Annai Sathya Nagar, Chennai-102 and drawing a salary of Rs.2000/- per month. Likewise, it is also seen that the respondent herein/wife is working in Raj T.V and drawing a salary of Rs.4,500/-. Though the said aspect has not been substantiated, I have already referred to the admission of the respondent herein in her counter statement filed in the main O.P.1310/2000 wherein she admitted that she secured a private job and is getting salary and staying with her brother. On the other hand, it is established particularly from Ex. R-1, the petitioner herein is getting only Rs.70/- per day or Rs.2000/- per month by working in Senthil Auto Garage. I have already referred to the language used in Section 24 which makes it clear that for grant of maintenance pendente lite the party should not have sufficient independent income for her support. In the light of the materials available, particularly the admitted case of the respondent/wife, she is employed in a private Satelite T.V. and earning for her livelihood staying with her brother, it cannot be construed that she is not having sufficient independent income. The Family Court lost its sight to consider the above material aspect.
6. In the light of what is stated above, the impugned order of the Principal Family Court dated 25-7-2002, made in I.A. No. 1058/2001 in O.P. No. 1310/2000 is set aside and the Civil Revision Petition is allowed. No costs. It is made clear that pending the divorce proceedings at any point of time if the applicant/wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite. Consequently, C.M.P. No. 16264/2002 is closed.

Maintenance not granted as it is proved no reason to leave husbands - Bombay High Court

Bombay High Court

Sanjay Sudhakar Bhosale vs Khristina W/O Sanjay Bhosale on 8 April, 2008

Author: V Kingaonkar

Bench: V Kingaonkar

JUDGMENT V.R. Kingaonkar, J. 1. By this revision petition, petitioner seeks immunity from liability to pay maintenance allowance as per Judgment rendered in Criminal Revision Petition No. 60 of 2000, by learned Additional Sessions Judge, Shrirampur, to respondent. He challenges the said Judgment reversing order of dismissal of the respondents application for maintenance passed by learned Judicial Magistrate (First Class), Shrirampur.
2. It would be useful to first note the admitted facts. The spouses belong to Christian community. Their marriage was performed on 14.5.1998 in accordance with tenets of Christian religion. The petitioner is employed as Wardboy in Yerwada Mental Hospital, at Pune. He resides in one of the Government quarters, out of nine such quarters, which are in one row, situated at back side of the mental hospital. He was a divorcee when he performed marriage with the respondent. She went to reside with him after the marriage. His parents and two brothers reside with him in the same residential quarter. The marriage was shortlived. The spouses are incompatible.
3. The respondent (wife) filed application under Section 125 of the Cr.P.C. for separate maintenance allowance. She asserted that for about six months, she was somehow treated alright in the matrimonial home. Thereafter, the husband started mental and physical harassment to her at instigation of his parents and brothers. Her in-laws used to express dissatisfaction regarding gifts given in the marriage. They used to abuse her. The husband (petitioner) used to beat her in drunken condition. He used to make unlawful demand of gold locket weighing 15 gms., a T.V. set and a mixer, which she was asked to bring from the parents. Her parents attempted to convince and plead with her husband. Still, however, he and his relatives continued the unlawful demand, which her parents were unable to meet out. He used to suspect her fedility. She apprehended danger to her life in the matrimonial home. He mercilessly beaten up her on 21.2.1999 and drove her out of the matrimonial home. She lodged a complaint at the Police Station. She is unable to maintain herself. The husband (petitioner) has got sufficient means to provide separate maintenance. Consequently, she demanded separate maintenance allowance at rate of Rs. 1,500/- (Rs. One thousand five hundred) from him.
4. By filing written statement (Exh. 14), the husband (present petitioner) denied truth into all the material allegations made by the wife. He denied that she was being ill-treated or harassed in the matrimonial house. He submitted that on 5th October, 1998, maternal uncle of the respondent (wife) visited his house and pretended that her another maternal uncle, who is inhabitant of Ahmednagar, was seriously ill. Lateron she went with her brother. She did not return home after 2/3 days as per the assurance and hence, he visited her parents house on 25th October 1998. They assured him to send her after the "Natal" festival. Thereafter, they avoided to send her and she refused to accompany him. He was ready and willing to maintain her. She deserted him without any substantial reason. He denied that she was neglected by him. He urged, therefore, to dismiss the application.
5. The parties went to the trial before the learned Judicial Magistrate (F.C.), Shrirampur in the proceedings (Criminal M.A. No. 85 of 1999). The respondent examined herself in support of her application. The present petitioner also examined himself and adduced evidence of two neighbours in support of his defence. On appreciation of their evidence, the learned Magistrate came to the conclusion that the respondent (wife) failed to prove that she was neglected and refused to be maintained by the husband. The learned Magistrate held that within a short span of five months of the marriage, she left his company, probably because she wanted separate residence without domestic chore in respect of his parents and the brothers. The learned Magistrate held that allegations of matrimonial cruelty are invented by the respondent (wife) and were unacceptable. In keeping with such findings, her application was dismissed.
6. Feeling aggrieved, the wife preferred revision application (Cri. Revision Petition No. 60 of 2000), which was allowed under the impugned order. The revisional Court reversed findings of the learned Magistrate and came to the conclusion that the version of the wife could not be discarded in the set of circumstances. The revisional Court awarded maintenance allowance at rate of Rs. 700/-(Rs. Seven hundred) p.m. in her favour from date of the application. The husband impugns Judgment rendered by the learned Sessions Judge in the revisional jurisdiction whereby the criminal revision petition No. 60 of 2000 was allowed.
7. Clinching question is as to whether the findings of the learned Judicial Magistrate could be regarded as perverse, arbitrary and patently erroneous so as to warrant interference by the learned Sessions Judge in the exercise of revisional jurisdiction. It is well settled that, normally, the revisional Court will not reappreciate the evidence. The impugned Judgment does not show that the learned Sessions Judge recorded finding that the appreciation of the evidence, as done by the learned Magistrate suffered from vice of arbitrariness, perversity or capriciousness.
8. In the above background, I would briefly take survey of the evidence tendered by the parties. PW-1 Khristina (wife) testified that after six months of the marriage, the husband and his relatives started giving cruel treatment to her on account of demand of money. This part of her statement is discripant with allegations in the pleadings. In her application, she alleged that a gold locket, weighing 15 gms, a T.V. set and a mixer were demanded by the husband from her parents. There is no whisper of any such demand throughout her oral statement before the learned Magistrate. She stated that on 21st February 1999, the husband beaten up her and drove her out of the house. She lodged a complaint at the Yerwada Police Station, Pune. Her version shows that she had written two letters and narrated her plight in the matrimonial home to her father. Her brother used to visit her matrimonial home. Neither of them entered the witness box nor the letters sent by her or copy of Police complaint lodged by her, have been placed on record. Her real married sister, by name, Archana resides in Yerwada locality at Pune. Her maternal uncle resides at Akurdi, Pune. She admits that she never informed her sister or any other relative about the ill-treatment meted out to her at hands of the husband and his relatives, except and save to her father. This conduct of the respondent was duly noticed by the learned Magistrate. She admitted that on 5th October 1998, her brother and maternal uncle visited the house of her husband to inform that her another maternal uncle, who is inhabitant of Ahmednagar, was suffering from illness. This admission corroborates contention of the husband that she was allowed to go to Ahmednagar to meet her ailing maternal uncle.
9. The learned Magistrate also noticed that the two neighbours, namely, DW-2 Shubhangi and DW-3 Bashid corroborated version of the husband. The version of DW-1 Sanjay (husband) would show that there was no ill-treatment given to the wife. He states that on 5th October 1998, brother of the wife and her maternal uncle visited his house and informed that her another maternal uncle, who is inhabitant of Ahmednagar, was suffering from illness and they requested him to send her with them. His version shows that he allowed them to take her away after 2/3 days. Thereafter, on 11th October 1998, her brother took her to Ahmednagar. His version shows that he made attempts to fetch her back but it was invain. The version of DW-Shubhangi reveals that the petitioner and his wife were never seen quarrelling with each other. Her version reveals that the respondent (wife) resided with the petitioner only for five months after the marriage and he is not addicted to any vice. There is only a middle wall between the residential quarter of the petitioner and DW-Shubhangi. She has no reason to speak lie nor any tangible material is gathered during her cross-examination. Similarly, DW-3 Bashid deposed that after five months of the marriage, the wife left house of the petitioner - Sanjay. In other words, the version of petitioner -Sanjay stands corroborated by the versions of two neighbours.
10. There is solitary and interested version of PW-Khristina in support of her application for separate maintenance allowance. Her version gives inconsistent account about so-called unlawful demand. She deviated from her pleadings. The findings of the learned Magistrate are based on due appreciation of the evidence. The further development may be noticed. The petitioner filed an application for restitution of conjugal rights in the Family Court at Pune. His application (P.A. No. 500 of 2002) is allowed by the Family Court on 21st July 2003. So far, the respondent (wife) has not challenged the Judgment of the Family Court. The Family Court raised a specific issue as follows:
Whether the petitioner proves that the respondent without any reasonable excuse has withdrawn from the society?
The learned Judge of the Family Court recorded an affirmative finding on the said issue. It is manifest, therefore, that not only the learned Judicial Magistrate, on appreciation of the evidence tendered by the spouses, came to the conclusion that she left his house, probably under burden of the domestic chores, but the civil Court also found that she is guilty of deserting him without any reasonable excuse.
11. The impugned Judgment reveals that the learned Sessions Judge undertook reassessment of the entire evidence though he was supposed to exercise the revisional jurisdiction. The learned Sessions Judge did not find any particular fault in the process of appreciation of evidence, as done by the learned Magistrate. The relevant observations of the learned Sessions Judge may be reproduced as follows:
14. On carefully scrutinising the evidence of the applicant and opponent it will reveal that the matrimonial life of the applicant was not smoothly going on due to some quarrel and ultimately, it was resulted into leaving the house of opponent, by the applicant. Observations made by the lower Court that the applicant had stayed for short period in the house of the opponent and therefore, there is no possibility of ill-treatment, does not appear to be proper and legal in the circumstances of the case. When the applicant has positively stated that she was subjected to ill-treatment not only that but she has lodged complaint in Yerwada Police Station, this will prima-facie give rise that she was ill-treated and, therefore, she has left the house of the opponent. Provisions of Section 125 of Code of Criminal Procedure need not require that there must be a strict proof of cruelty.
The above observations of the learned Sessions Judge would indicate that he accepted version of the wife only because she gave positive statement that she was subjected to ill-treatment and had lodged the complaint at Yerwada Police Station. As stated before, there is no scintilla of evidence to show that really she had lodged a complaint about the matrimonial cruelty. Nor her so-called positive statement finds support from her pleadings. In this view of the matter, it is difficult to countenance the findings of the learned Sessions Judge. Her mere statement could not have been taken as gospel truth as regards neglect and refusal of the husband to maintain her. It is overlooked by the learned Sessions Judge that within a short span of the marriage, the wife left his company and no notice was given within a reasonable time by her, seeking restitution of the conjugal rights.
12. The Apex Court, in Deb Narayan Halder v. Smt. Anushree Halder 2003 (3) B Cr C 286, held that the appellate Court or revisional Court while setting aside findings recorded by Court below must notice those findings and where the findings are of facts, evidence on record must be discussed, which should justify reversal of findings recorded by the Court below. The Apex Court held that when the maintenance application of the wife was rejected by the learned Magistrate, holding that she had on her own left the matrimonial home, the High Court was not justified in reversing such findings recorded by the trial Court and to grant maintenance to the wife.
13. In view of foregoing discussion, it will have to be said that the findings of the learned Magistrate should not have been interfered with by the revisional Court and for the reasons, which are recorded by it. The inferences drawn by the learned Sessions Judge are improper and incorrect. There is misinterpretation of the evidence by the learned Sessions Judge. Under these circumstances, the impugned Judgment is unsustainable and liable to be interfered with.
14. In the result, the petition is allowed. The impugned Judgment is set aside and the Judgment rendered by the learned Magistrate in Criminal Misc. Application No. 85 of 1999 is restored. The wifes application under Section 125 of the Cr.P.C. is dismissed. However, the payment of maintenance allowance, if any, during the intervening period, is not refundable by her. No costs.

Maintenance not granted as it is proved that wife wants to reside separately- Bombay High Court

Bombay High Court

Mrs. Meena Dinesh Parmar vs Shri Dinesh Hastimal Parmar on 4 February, 2005

Equivalent citations: AIR 2005 Bom 298, 2005 (4) BomCR 672, 2005 (2) MhLj 305

Author: R Mohite

Bench: H Gokhale, R Mohite

JUDGMENT R.S. Mohite, J. 1. This appeal has been filed by the appellant Mrs. Meena Dinesh Parmar (hereinafter referred to as "wife") against the respondent Dinesh Hastimal Parmar (hereinafter referred to as "husband") seeking to quash and set aside the Judgment and order passed by the Judge, Family Court, Pune on 26.2.2001 In Petition No. A-354 of 2000 and Petition No. E/810/1998. Petition No. A/354/2000 is a petition filed by the husband for grant of divorce on the ground of cruelty and desertion under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. The Petition No. E-810/1998 was filed by the wife claiming maintenance under Section 125 of the Code of Criminal Procedure, 1973. By the impugned Judgment and order the Judge, Family Court granted dissolution of marriage by decree of divorce on both the grounds and granted Rs. 500/- per month as maintenance to a son Bhushan who was born out of the marriage, while rejecting the claim of the wife for grant of maintenance.
2. The case of the husband as made out in his petition filed in the Family Court was as under:
a) That, both the parties belonging to Hindu community had entered into an arranged marriage on 24.2.1995. The marriage was performed as per the Hindu Vedic rites. At the time of marriage the husband was a bachelor and the wife was a spinster.
b) After the marriage the newly wedded couple started residing in a family residence of the husband at Bhandup. A few days after the marriage the wife started picking up quarrels with the husband and other family members on trifle matters. She started insisting for separate accommodation. According to the husband even before the marriage, he had asked his wife as to whether she was ready to stay in a joint family and she had agreed to do so. The husband reminded her of this consent given by her but the wife continued to insist that they should move to a separate accommodation. The husband move to a separate accommodation. The husband tried to persuade her not to be adamant but the wife respondent by denying him physical contact, thus, causing him mental and physical torture. The husband further found that his wife was not carrying out household duties. She used to sit in a corner in the room and was not helping other family members in carrying out other household duties.
c) That the parents of the wife used to reside at Yogita Building, Daulat Nagar, Borivali (E). The wife used to frequent her parents house. She had a maternal uncle staying at Pune. This maternal uncle was a divorcee and the petitioner's wife used to visit her maternal uncle also. The husband was required to go and search for her and he used to find her at her parents' home.
d) That, on 15.5.1996, the husband sent his wife to her parents' house at Borivali for delivery as she was then seven months pregnant. However, to the dismay of the husband and his family, his wife went to the house of her maternal uncle at Pune for delivery instead of staying at her parents house at Borivali. She went to the house of her maternal uncle without informing the husband. Inspite of such action by his wife, upon master Bhushan being born at Pune, the husband and his family members had gone to see the newly born baby at Pune. At Pune, the husband asked the wife to return with him to the matrimonial home at Bhandup but the wife refused to do so. Her maternal uncle Babulal Dhoke also refused to send her to Mumbai alongwith the husband. Quarrel took place between the wife and her maternal uncle on one hand and the husband and his family members on the other and the wife clearly told her husband that she will never return to her matrimonial home and she will live with her maternal uncle at Pune. She also told the husband that she wanted a divorce from him.
e) Since the husband found that his wife was completely adamant about having a separate accommodation, in the month of April, 1997, in order to save his matrimonial life, he purchased a separate premises. Thereafter, husband and his family members went to Pune on several dates to persuade the wife to return but she refused to do so. On 3 to 4 occasions maternal uncle even assaulted the husband and tried to drive him out of the house.
f) On the occasion of the first birth day of the child,master Bhushan, husband had gone to Pune with some sweets, clothes and presents. However, the wife and her maternal uncle refused to accept the presents and threw the same towards the husband. Husband then collected the same and kept them in a corner of the room. However, the wife sent back sweets, clothes and presents to the husband by courier on the very next day.
g) On 26.9.1997 the husband filed a petition in the Family Court at Pune for restitution of Conjugal rights.
h) As a counter move to the said petition, wife filed police complaint against the husband and his family members at Pune (Ramoshi Gate) Police Station and the husband and his family members were required to go to the police station at least thee times and due to the harassment caused to them and likelihood of harassment they also applied for anticipatory bail which was granted to the husband and his family members by the court.
i) On 1.6.1998 wife then filed a maintenance application in the Family Court at Pune. In her application, she contended that due to harassment caused by her husband and his family members she had to leave for her parental home when she was pregnant. But as the harassment continued, her parents sent her to the house of her maternal uncle at Pune. Inspite of her delivery on 29.7.1996 she continued to be neglected by her husband. That, because of continued harassment and the sending of a false notice by her husband she had to file criminal case in Khadki Police Station at Pune. She claimed maintenance at the rate of Rs. 500/- p.m. for herself and Rs. 500/- for her son. She also filed Civil Misc. Application in the High Court of Mumbai for transfer of the husband's petition for restitution of conjugal rights. Seeing that there was no hope of her return, the husband withdrew his petition for restitution of conjugal rights by filing an application dated 5.11.1998 in the family Court at Bandra. The wife also filed a private complaint under Section 498A of the Indian Penal Code at Pune Court. As a result of these proceedings it has become clear that his wife was not interested in living with him.
j) In the circumstances, on 10.11.1998, the husband filed a petition for grant of divorce on the ground of desertion and cruelty.
3. On 8.10.2000, the wife filed her written statement. In the written statement she denied the allegations made by the husband. She also came out with a positive case that her parents had given 33 tolas of gold ornaments and 4-K.G. of silver ornaments to her on the demand made by her husband. That her parents had spent four to five lacs at the time of the marriage. That, after the marriage the husband and his family members had asked money from time to time from her parents and therefore, her parents were constrained to sell their flat for fulfilling the demand of her husband and her family members. She was harassed and ill-treated by the petitioner and his family members. Her husband tired to compel her to give a divorce in writing on stamp paper. Her parents were not in a position to fulfil such exorbitant and continuous demands because they were not financially sound. That, she was never provided with medical aid during her pregnancy and therefore, she became weak. That, as a result of such harassment she had to return to her parents house at Borivali. Since her husband and his family members continued to harass her, her parents sent her to Pune for her safety. At Pune she delivered her child and since she was very weak she was admitted in Meera Hospital where she took treatment for 2.1/2 months. That, her husband neither performed his duty as her husband or as father of the child nor had he visited her after her delivery. That, her husband was making false allegations against her for adultery. That, her maternal uncle was a respectable person in society and was just like her father to her. He had brought up her just like a daughter. That, these allegations made by her husband against her and her maternal uncle amounted to cruelty to her and her maternal uncle. She denied that she had made any demand for a separate residence and denied that she had caused any mental and physical torture by denying physical relations to her husband.
4. At the trial the husband examined himself as P.W.No. 1, his brother Dr. Naresh Parmar as P.W.2 and one Kantilal Ranka who claims to be the employer of the husband as P.W.3. The wife examined herself as R.W.1, her mother Bhavaribai Surana as R.W.2, her other uncle Devraj Dhoka as R.W.3 Both the sides produced documentary evidence. Upon considering all the evidence on record, the Family Court, Pune passed the impugned judgment and order which is the subject matter of challenge in this appeal. It may be stated here that since no stay to the decree of divorce was granted pending this appeal, the husband married again and has by now two children from his second marriage.
5. We have heard both the sides exhaustively. We have also perused the entire evidence on record. We made serious attempts to see that the parties to be brought together but our efforts have failed. It is the admitted position before us that the parties have been staying separately since 15.5.1996 i.e. for a period of more than 6 years and 8 months. Since all attempts of reconciliation failed, we have looked into the evidence in order to decide the matter on merits. We find from the evidence of the husband that the main reason given by him as to why his wife was unhappy was that she was seeking a separate accommodation and desired to stay away from the joint family. He has stated that his wife denied physical relations with him and caused him physical and mental torture. That,after she left her matrimonial home on 15.5.1996, though she initially went to her parental house at Borivali within two days he came to know that she had gone to her maternal uncle's house at Pune. He deposed that he had gone to the house of her maternal uncle and had been abused by him. His wife had informed him that she wanted to stay at Pune. That, in April, 1997 he had made arrangement for a separate residence at Bhandup and had intimated about it to the parents of his wife but inspite of this she did not return. We have noted that the wife took the contention that she was willing to stay in a joint family. If this be so, then one of the main reason for acrimony between the parties would not exist and there was no reason for her not to return to her husband. We find that she has contended that she was harassed and ill-treated by the petitioner and his family members. Her contentions in this regard are vague. There is no date mentioned in respect of any particular incident of harassment. So also particulars of harassments are also not given. She had stated that she was never provided with any medical aid during her pregnancy. Apart from her bare statement, there is nothing on record to substantiate this contention. It is noted that she had gone to her parents place at Borivali for delivery however, within two days she left for her uncle's place at Pune. In the police enquiry her own father had given a statement that his consent and permission was not taken for leaving his house at Borivali. We find no justification in the contention of the wife for staying at Pune with her maternal uncle, even though her husband had purchased a separate place for their exclusive residence. Such an act on her part of staying at Pune alongwith her newly born son does amount to both cruelty as well as desertion and no fault can be found in the impugned judgment and order granting divorce on the ground of cruelty and desertion.
6. So far as question of maintenance is concerned, in view of our aforesaid finding, maintenance cannot be granted to the wife. In so far as the child is concerned, we find that an amount of Rs. 500/- which is awarded is too meagre looking to the present requirements of a growing child. The evidence indicates that the husband had sufficient money to purchase his own flat. He cannot be said to be a person of no means. No doubt, he contended that he had borrowed monies from his friends to purchase the new flat but he candidly admitted that he had not taken any such contention about borrowing of monies from his friends in his petition nor had he led any evidence in this regard. Taking an over all view of the matter, we feel that ends of justice will be met if an amount of Rs. 3000/- per month is granted as maintenance to the child. The husband will have an option of making lumpsum payment of Rs. 5,00,000/- towards the maintenance of his son and if he makes such lumpsum payment in full, then his liability to pay maintenance at the rate of Rs. 3000/- per month will cease from the date of full payment. He will also have an option to make a lumpsum payment of Rs. 2,50,000/- at the first instance and if he does so then the maintenance payable to the son will stand reduced to Rs. 1500/- per month from the date of such payment. The maintenance amount/amount in lieu of maintenance as aforesaid would be payable to the son till the son attains the age of majority. In the circumstances, the appeal is partly allowed with costs in the aforesaid terms.

Judgement- Divorce by mutual consent

Krishna Kumari vs Ashwani Kumar on 19 August, 1996
Equivalent citations: II (1997) DMC 616
Author: S Saksena
Bench: S Saksena
JUDGMENT

Sarojnei Saksena, J.

1. Appellant-wife has filed this appeal under Section 28 of the Hindu Marriage Act,1955 (in short, the Act) against the judgment and decree of the Matrimonial Court by which her divorce petition filed under Section 13 of the Act was dismissed on October 17,1995.

2. The uncontroverted facts are that the appellant was married to the respondent on September 27,1990, as per Hindu rites at Ambala City. They lived together till November 26, 1990. Since then they are living separately.

3. In the divorce petition, the appellant-wife pleaded that even on the day of the marriage the behaviour of the respondent towards her was cruel as he demanded Rs. 50,000/- saying that her father has not spent any money on her marriage. After that demand some amount was given to the respondent by the appellant. Once she was pushed from the stairs, thereby she sustained injuries on her foot, but she was not taken to any doctor. Two days thereafter the respondent and his sister came to the parents of the appellant and insulted them. The appellant is working in the Insurance Company. She joined her duty on November 3, 1990. When she returned home late due to Mandal Commission's riots, respondent's family fanned the rumour that she had run away. She was forced by the respondent to take a loan for purchasing a scooter for him. She was mercilessly beaten on November 25,1990. She tried to lodge a report on November 26,1990, against the respondent and his family members. She was turned out of the matrimonial home on November 26,1990. She reached her parental home and on December 4, 1990, she lodged a report against her husband and his mother, which was registered by the police on December 28, 1990. Thus, she claimed divorce on the grounds of cruelty and desertion.

4. Husband-respondent in his reply denied all these allegations of cruelty, desertion, demand of dowry etc. According to him, the appellant herself was not ready to live with the respondent and wanted a divorce. She lodged a false report against him and his mother under Sections 406 and 498-A, IPC.

5. Issues were framed by the Matrimonial Court. Both the parties adduced their evidence.

6. The Matrimonial Court held that the appellant-wife has failed to prove that she was treated with cruelty by the husband -respondent or was deserted by him. Hence her divorce petition was dismissed on October 17,1995.

7. During the pendency of this appeal, on July 29, 1996, the parties filed a joint petition under Section 13-B of the Act read with Section 151, CPC for convert- ing the proceedings under Section 13 of the Act to proceedings under Section 13-B of the Act. In this petition they have alleged that due to temperamental differences, they have separated. The appellant-wife filed a petition under Section 13 of the Act, which was dismissed on October 17, 1995. The wife has preferred the aforesaid appeal against that judgment and decree. During the reconciliation proceedings of that appeal, both the parties have arrived at a compromise, which is annexed as Annexure A-l. The parties are living separately since November 26,1990. There is no issue out of this wedlock between the parties. They have settled that the husband would pay a sum of Rs. 25,000/- to the wife in full and final settlement of all her claims against the husband-respondent.

8. Parties statements were recorded on that very day to verify whether this petition is submitted by them with their free Will and consent, without any force, coercion or undue influence. Both the parties deposed on oath that they have agreed to obtain divorce by mutual consent and they have signed the compromise Annexure Al, after understanding its contents. Wife admitted that she has received Rs. 25,000/- from her husband in full and final settlement of her claims against him. She also admitted that she has got FIR No. 631 registered against the husband on December 28,1990, under Sections 406/498-A, IPC. She agreed that she would get this FIR quashed by the High Court. Husband has filed Criminal Misc. No. 13269-M of 1996 under Section 482, Cr. P.C. for quashing this FIR.

9. Both the Counsel pray that decree of divorce be granted on the basis of the compromise AnnexureA-1 filed by the parties in the Court, in support of which they have already given their statements. They also argued that the parties have entered into this compromise without any undue influence or coercion. They argued that the parties were married on September 27,1990. They lived together only till November 26,1990. Since then they are living separately. Many attempts have been made by both the sides for reconciliation. Even when the divorce petition was pending before the Matrimonial Court, an attempt was made for reconciliation, but with no result. After about six years of living separately, they have decided that they should obtain divorce by mutual consent. They also argued that considering the age-group of the parties, it is in their interest if divorce is granted to them immediately instead of waiting for six months, as is required under Section 13-B(2) of the Act. Both the Counsel argued that if divorce is granted to them without losing this time, the parties may enter into a fresh matrimonial alliance and can resettle in their lives. Thus their broken homes can be re-established. In support of their arguments, they have placed reliance on Sukesh Bhatia v. Anita Bhatia, 1995(2) HLR 457; Naveen Bansal v. Seema Bansal, 1995(2) HLR 529; Ved Kumari v. Ramesh Chander @ Subash, 1992(2) HLR 141; Jai Bhagwan v. Sushila @ Chanda, 1995(2) HLR 531; Surinderjit Singh v. Gurdeep Kaur & Anr., 1992(2) HLR 218; Naresh Kumar v. Smt. Sarla, 1992(2) HLR 449; Madan Lal v. Smt. Nirmal Kanta @ Lalit, 1990(1) HLR 168; K. Omprakash v. K. Nalini, 1987(2) HLR 230; Jagroop Singh v. The General Public, 1981 HLR 269; Jagmohan Ahuja v. Smt. Sudesh, 1979 HLR 303; Smt. Nirmal Devi v. Sat Pal, 1984 HLR 475.

10. In Naveen Bansal's case (supra) a Single Bench of this Court granted divorce under Section 13-B of the Act, waiving the period of six months. In that case the wife received Rs. 3 lacs as permanent alimony and agreed to get her complaint quashed, which she lodged under Sections 406/498-A, IPC and under Dowry Prohibition Act.

11. In Ved Kumari's case (supra) another Single Bench of this Court held that the parties are living separately for the last more than one year and there is no likelihood of any reconciliation for their living together. Considering the facts, the Single Bench held that it will be of no use to keep misapplication pending for statutory period of six months as contemplated by Section 13-B(2) of the Act as the litigation between the parties, is pending for a period of over four years and they have not been able to reconcile to live together during this period inspite of efforts of both sides to do so. Hence, period was waived and divorce was granted.

12. In Surinderjit Singh's case (supra) parties were living separately for more than six years. Husband filed a divorce petition, which was dismissed. When his appeal was pending before the High Court, parties filed a petition under Section 13-B of the Act and prayed that the period of six months be waived off. Husband paid Rs. 25,000/-in Iumpsum to the wife in full and final satisfaction of her claims. The learned judge held that in his opinion the parties have reached such a stage where their living together has become impossible and it is a broken marriage. It will be in the interest of both the parties if application for grant of divorce by mutual consent is allowed.. Hence the divorce under Section 13-B of the Act was granted, waiving off the period of six months.

13. In Naresh Kumar's case (supra) on identical facts, another Single Bench of this Court allowed the petition under Section 13-B and waived off the period of six months under Section 13-B(2) of the Act. In that case also the parties were living separately for six years. Husband paid Rs. 21,000/- to the wife in respect of her claims.

14. In Smt. Nirmal Devi's and Jagmohan Ahnja's cases (supra) also petition under Section 13-B of the Act was allowed and period was relaxed.

15. A Division Bench of Andhra Pradesh High Court in K. OmParkash's case (supra) held that the provisions of Section 13-B(2) of the Act are directory. There provisions do not fetter on the powers of the Appellate Court to grant instant decree of divorce. The Appellate Court is competent to grant instant decree of divorce without reference to the time limit prescribed under this sub-section. In that case marriage took place between the parties on February 19,1978. Since January, 1980 they were living apart. They observed : "However, a petition filed for divorce by consent under Section 13-B of the Hindu Marriage Act is required to be kept in abeyance for a minimum period of six months. This is in sharp contrast with a petition for divorce by consent under Special Marriage Act which is liable to be kept in abeyance at least for one year. This liberalising trend of law in the matter of granting divorce by consent cannot be lost sight of by Courts in interpreting that Section. But even the Clause (2) of Section 13-B requires a Court not to pass a decree for divorce before six months 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 months for rethinking of the parties. If the above timetable fixed by Section 13-B(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 Vz 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 13-B(2) of the Hindu Marriage Act. That question is whether the Legislature intended to Section 13-B(2) of the Hindu Marriage Act should be treated as mandatory provisions of law or the Legislature intended that section to be treated merely as a directory provisions of law. We have already noticed the language of Section 13-B(2). On first impression it is not impossible to hold Section 13-B(2) to be mandatory. As a mandatory provision of law calls for its pound of flesh and requires to be complied strictly and it is not being satisfied with offerings of mere 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 of time. 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 for Section 13-B(2) or its context or purpose or design that calls for Section 13-B(2) being interpreted as directory. In our opinion, there are weighty reasons warranting the reading of Section 13-B, Clause (2) as directory. In that context, we must first call attention to the design of the law expressed in its liberalising tendency of providing relief to the 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 statutory matrimony between unwilling part- ners. Next, we must note that this six months' time fixed by Section 13-B(2) is no rule relating to the jurisdiction of the Court to entertain a petition filed for divorce by consent. That question of jurisdiction is dealt with by Section 13-B(1) of the Act and must be strictly complied with Section 13-B(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 rule. 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 13-B(2) becomes totally unworkable. According to the literal reading of Section 13-B(2) the Courts cannot pass consent decree of divorce beyond 18 months' period from the date of its filing."

They further held :

"For all the above reasons, we are of the opinion that Section 13-B(2) of the Hindu Marriage Act should be read as directory only. Section 13-B(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 13-B(2)does not impose any 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 13-B(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 straightaway. Accordingly, we pass a decree of divorce declaring the marriage between the appellant and the respondent as dissolved with immediate effect."

16. In Madan Lal's case (supra) a Division Bench of this Court also considered such facts. Husband-Madan Lal filed a petition under Section 13 of the Act, which was allowed. Resondent-wife filed an appeal before the High Court, which was allowed by a Single Bendi on April 30,1984. Husband-Madan Lal filed LP A before the Division Bench. During the pendency of the LPA, the parties agreed to obtain a decree of divorce by mutual consent under Section 13-B of the Act, in view of their living separately for a period of 10 years. They filed a joint petition with a prayer that the original divorce petition filed by the husband may be treated as petition under Section 13-B of the Act. They also gave their statements to that effect in the Court. The Division Bench held that since the parties have been litigating since 1980, have not been able to reconcile, it will be futile to allow a period of six months before passing a decree of divorce as provided under Section 13-B(2) in view of the amendment. Thus, the petition under Section 13-B was allowed and period of six months was waived.

17. In Sukesh Bhatia's case (supra) a Division Bench of this Court had an occasion to consider such a situation. In that case the parties were living separately for a long period. The Division Bench held that their marriage is irretrievably broken inspite of all efforts for reconciliation and they have agreed that ex-parte decree of divorce between them be converted into adecree of divorce by mutual consent. Considering these aspects the Division Bench dispensed with the requirement of six months' notice and by its order dated March 1, 1995, converted ex-parte decree of divorce into a decree of divorce by mutual consent on the terms and conditions contained in the agreement of divorce reproduced therein.

18. This very Division Bench again decided such a matter on May 2,1995, in Jai Bhagwan's case (supra). In that case the parties were married on November 1, 1987. They started living separately since May 14, 1988. Husband filed divorce petition under Section 13 of the Acton August 30,1990, on the grounds of cruelty and desertion on the part of the respondent-wife. His petition was dismissed on May 3, 1994. His appeal was pending before the High Court. Attempts for reconciliation were made. During the reconciliation proceedings on March 29, 1995, the parties agreed to settle their disputes/claims and dissolve their marriage by a decree of divorce by mutual consent on payment of Rs. one lac to the respondent-wife in full and final settlement of all her claims. The Division Bench held that the parties are residing separately for the last more than half a decade. It is a case of irretrievable broken marriage. Hence it would be consistent in the interest of justice to dispose of the matrimonial dispute expeditiously as envisaged by legislation. They observed :

"We are fuly satisfied that for granting the relief of decree of divorce by mutual consent to the parties, there is no impediment/disability, from which the parties suffer. In view of the large number of adjournments given it is obvious that the parties have neither connived nor condoned any act of desertion complained of.

4. Keeping in view the hardship, long protracted litigation inter se the parties and their having placed on the record a compromise deed mark 'X' for decree of divorce by mutual consent, the marriage between the two has become unworkable because of irreconciable differences. We are satisfied that the parties are entitled to a decree of divorce by mutual consent in terms of compromise deed mark 'X'."

Resultantly, a decree of divorce by mutual consent in terms of the compromise was granted.

19. Lately,in Matnta Sabharwal v. Ravinder Kumar Sabharwal, FAONo.46- M of 1995, decided on April 22,1996, a Division Bench of this Court again had an occasion to consider such facts. In that case also the respondent-husband filed a petition under Section 9 of the Act in the Matrimonial Court, which was allowed. Wife filed appeal against that judgment and decree. During the pendency of the appeal, the parties filed a petition under Order 6, Rule 17, CPC praying conversion of petition filed under Section 9 of the Act into a petition under Section 13-B of the Act. In the amendment petition, the parties averred that they are temperamentally different and have mutually agreed to dissolve the marriage. They appended their joint affidavits also in support of the petition. This petition was allowed. They also made a prayer that period provided under Section 13-B(2) of the Act be waived and decree of dissolution of marriage be granted at that very stage. The Division Bench referred to the judgment of the Apex Court in Sureshta Deviv. OmParkash, AIR 1992 S.C. 1904. It also considered the judgments of this Court in Harcharan Kaur v. Nachhattar Singh, AIR 1988 P&H 27; Smt. Krishna Khetarpal v. Satish Lal, AIR 1987 P&H 191; Lalit Kumar v. Sushma Sharrna,1995(1) PLR 255 and Niranjan Kumar v. Vecna Rani, 1995(1) All India Hindu Law Reporter 123 (Pb. & Hry.), and held that in view of the above decisions it must be held that the Court cannot pass a decree of divorce before the expiry of six months counted from the date of the presentation of a petition under Section 13-B of the Act. They observed that the above-referred two judgments Lalit Kumar and Niranjan Kumar, (supra) have to be read as confined to the facts of those cases and cannot be read as laying down any proposition of law regarding interpretation of Section 13-B of the Act. Thus, they held that the period of six months prescribed under Section 13-B(2) of the Act is mandatory and the Court can pass a decree of divorce only after the expiry of the period of six months counted from the date of filing of the petition under Section 13-B(1) of the Act.

20. The facts of Sureshta Devi's case (supra) were different. In that case the parties filed a petition under Section 13-B(1) of the Act for obtaining divorce by mutual consent before the Matrimonial Court. Within six days of the presentation of the petition, the wife withdrew her consent. The point arose whether a party can unilaterally withdraw consent. Some orders were passed by the Matrimonial Court-ultimately the petition filed under Section 13-B(1) of the Act was dismissed by the District Judge, but on appeal the High Court of Himachal Pradesh granted divorce decree on the basis of that petition, holding that a spouse who has given consent to a petition for divorce cannot unilaterally, withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. The matter went to the Apex Court. The Apex Court held : "From the analysis of the section, it will be apparent that the filing of the petition with mu tual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum is 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 to the joint motion under Sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both."

Their Lordships further observed :

"What is significant in this provision 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 the 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.

Sub-sec t5 on (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B."

The Apex Court affirmed the view taken by the Kerala High Court in JFC.I. Mohanan v. Jeejabai, AIR 1988 Kerala 28, by this Court in Harcharan Kaur v.Nachhattar Singh, AIR 1988 Pb and Haryana 27, and by Rajasthan High Court in Santosh Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128, wherein they held that it is open to one of the spouse to withdraw the consent given to the petition at any time before the Court passes a decree of divorce.

21. Thus, it is apparent that whole of the judgment of the Apex Court rests on this premise whether either party can withdraw his or her consent before the petition filed under Section 13-B(1) of the Act is accepted by the Court and in that background the provisions of Sections 13-B(1) and (2) are interpreted and it is held that when a petition is filed before the District Court, the Court is required to wait for six months minimum and 18 months maximum and after holding further enquiry and being satisfied that the parties have given their consent without any fear or undue influence, then to pass a decree of divorce on the basis of mutual consent.

22. If from the facts and circumstances of the case, the Court comes to a conclusion that the marriage is irretrievably broken - it has virtually become a deadlock - and there is hardly any scope for reconciliation or for any other type of rethinking the Court is competent to grant a decree of divorce on the basis of their mutual consent.

23. In Sandhya Rani v. Kalyanram Narayanan, 1994 Supp (2) Supreme Court Cases 588, the Apex Court has again considered such a petition filed by the parties. Their Lordships held :

"....It is not disputed that the parties are living separately for the last more than three years. We have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. The parties have made joint request for mutual divorce. The written request by the parties has been placed on the record. In order to do complete justice between the parties, we are inclined to grant decree in divorce on the following agreed terms."

Thus, the petition filed under Section 13-B of the Act was allowed and decree of divorce was granted.

24. Section 13-B(l) lays down when a joint petition is laid before the District Judge alleging 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 be dissolved. This provision is introduced in 1976 by amendment. The purpose of this provision is to give speedy relief to the parties, if for long they are living separately and there is no possibility of their living together, then their just volitional act should be respected and divorce be granted to them.

25. Legislature has contemplated that if by moving such a petition they have knocked the door of the District Judge's Court, it is required that they should be given a reasonable time for reflection and rethinking to consider the pros and cons of divorced life, to take assistance of their relations and friends to make an attempt for their reconciliation. But if the spouses are litigating for the last many years, many futile attempts have already been made by both fine parties to come under the same roof to lead a harmonious, loveable, peaceful marital life, then in the second inning of their litigation, if after being ti red of these litigation bouts, they submit to the jurisdiction of the Appellate Court and make a humble prayer that they are living separately for long, they cannot live together, so by their mutual consent they have decided to obtain divorce, if at that juncture, this relief is not granted to them, it means that soul of the provision is sacrificed for the form only.

26. Legislature has given this right to such spouses even when they are living separately for one year or more, but if for years together they are living separate, are not able to rejoin each other, virtually they have already saped their marital tie, they only want a judicial recognition of that. If at that juncture they are made to wait for six months more, they will be forced to carry the pillory of marriage for long six months with no purpose. When they are fed up with their marital disputes and are trying to take their necks out of this noose, this freedom should not be denied to them.

27. Further, while accepting such petitions Court should be vigilant to see that parties have consented freely for mutual divorce. They have not acted under some duress, misrepresentation, force or fraud. In the backdrop of Indian society, which is virtually male dominated, the woman folk is likely to be a prey to all these tactics. But in this case there is no such possibility. The parties were married on September 27,1990. They lived together only upto November 26, 1990. Since then they are living apart. Wife filed petition under Section 13 of the Act on May 22, 1992. She lodged a complaint under Sections 406/498-A, IPC against the husband and she has now accepted Rs. 25,000/- from her husband in full and final settlement of all her claims and has also agreed that her complaint be quashed. Therefore, in my considered view the parties have given their consent freely for obtaining divorce by mutual consent. Thus, it is apparent that there is no violation of the spirit of the statute when marital discord has otherwise been brought to surface in Matrimonial and Criminal Courts both, leaving out any chance of collusion between the parties so as to play a fraud on the statute. Collusion being out of picture and litigation between the parties having remained rife for more than four years, justifies the grant of divorce to the parties under the spirit of Section 13-B of the Act, though not in accordance with its letter. No Court can shut its eyes to the reality of the situation. These two human beings have wrecked their lives in mutual acrimony. At both the levels i.e. in the Matrimonial Court as well as in this Court efforts for reconciliation were made, but they remained abortive. During those reconciliation proceedings, the parties arrived at this solution with a view to resettle their lives. Now they look to the Court to grant them relief. Under these circumstances, if they are made to wait for six months, that will defeat the spirit of the provision itself. This period of six months is provided to give a chance to the parties for reconciliation, but in this case that chance is lost for they themselves have filed such a petition as their desperate last move to seek peace and harmony in life. In my considered view, it should not be denied to them. Now if they want to break their matrimonial bond right now, they should be allowed to do so.

28. Thus, considering all the facts and circumstances of the case, the petition is allowed. Period of six months is waived and a decree of divorce on the basis of mutual consent is granted to the parties with immediate effect. A copy of the decree be furnished to both the parties free of costs.

Mutual Consent Divorce

What is Divorce by mutual consent?

Divorce by Mutual Consent means when both the parties that is the husband and wife do not wish to contest the divorce in court and jointly file a petition before the court agreeing upon certain conditions and terms between them. Divorce by mutual consent is the easiest and fastest way of getting divorce in India. The Conditions required under section 13B Hindu Marriage Act for divorce by mutual consent are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved.

What is the Procedure for divorce by mutual consent?

The following is the procedure for divorce by mutual consent:

• Both Parties ie Husband and Wife have to reach to Mutual understanding and agreement regarding terms and conditions for Divorce.
• On the basis of settlement and agreement, petition for Mutual Consent is drafted. Under Hindu Marriages, such Petition is filed under section 13 B of the Hindu Marriage Act. Under Christian Marriages, section 10 A of the Indian Divorce Act. Under secular or civil marriages, section 28 of the Special Marriage Act.
• Divorce Petition will be drafted which will include terms of settlement agreed between parties.
• Such Mutual Consent Divorce Petition shall be filed in the Court as court procedure.
• Matter will come up for hearing in the Court and generally parties have to be present before the Court and their statement is recorded.
• After recording of statements, First Motion will be passed.
• Court gives six months time to parties to reconsider their decision. This is called cooling period generally.
• Second Motion is set up.
• Aforesaid steps shall be repeated. Statement of parties will be recorded again.
• After such recording of statement, Court will grant pass order and judgement, decree for divorce is granted.

What are the tentative list of settlement terms that can be incorporated in a mutual consent divorce ?

Firstly: Custody of child;
Secondly: Alimony (lump sum maintenance to be decided between parties);
Thirdly: Returns of items (dowry, streedhan, etc); and
Fourthly: Litigation expenses.