DEEPAK KUMAR Vs. POONAM RANI

JUDGEMENT

(1.) The appeal is against the dismissal of the petition filed under Section 13B of the Hindu Marriage Act by the unilateral withdrawal of one of the parties from the petition and not showing up before the Court for affirming the concurrence to the relief sought in the petition. The contention raised on behalf of the husband-appellant is that the wife has received the consideration for the settlement and after receiving the amount she cannot resile from the same. The compromise effected between the parties that spelt out a mutual consent for divorce has to be fully given effect to.

(2.) In my view, the case law is too well established for making any new innovation from a High Court. Section 13B of the Hindu Marriage Act by the very nature of things is a mechanism to provide for divorce on a mutual consent,, which consent must exist at the date of the petition when it is presented, during the entire period of 6 months when parties may have to wait and continue till the date when the Court passes a decree dissolving the marriage. If the consent does not subsist in anyone of the three occasions, then a decree of divorce by mutual consent is not possible. In Niti Malviya v. Rakesh Malvia, 2010 6 SCC 413, the issue was whether a matrimonial Court had a discretion to grant divorce instantly by waiving the statutory requirement. In that case a settlement was struck and the husband was required to pay Rs.65 lacs to the wife within a stipulated period. The Supreme Court had before it an earlier judgment in Anjana Kishore v. Puneet Kishore, 2010 10 SCC 194 where the Court stated that it was possible to waive the requirement of 6 months. The subsequent judgment in Niti Malviya went as far as doubting the correctness in waiving the statutory requirement. In two other judgments, subsequently in Manish Gael v. Rohini Goel, 2010 AIR(SC) 1099 and Poonam v. Sumit Tanwar, 2010 AIR(SC) 1384 the Supreme Court showed reluctance to invoke even the extraordinary power to waive this statutory period of 6 months wait. In Anil Kumar Jain v. Maya Jain, 2009 10 SCC 415, the Hon'ble Supreme Court clarified that statutory requirement of even waiving 6 months period could be invoked only by the Hon'ble Supreme Court under Article 142 and the said power was not vested with any other Court.

(3.) Section 13B of the Hindu Marriage Act begins with a restrictive clause as being "subject to the provisions of the Act". This operates as proviso in that even if the mutual consent of parties exist, the Court will still have a power under Section 23 to disallow the relief. I cannot under the circumstance provide for a relief to claimant a relief of divorce, contrary to the statutory mandate when the parties were to appear on the expiry of 6 months' time to affirm the mutual consent that marriage should be dissolved. Section 13B(2) requires that the Court shall be satisfied that the petition has not withdrawn consent after the presentation of the petition and within a period of 18 months from the said date and that only after making such enquiry as it thinks fit, it can pass a decree for divorce dissolving the marriage from the date of the decree. Again, it must be noticed that the operational clause under Section 13B(2) is to make a divorce effective from the date of decree of the Court and not from the date of agreement between the parties to have their marriage annulled. The dissolution of marriage cannot take place by mere agreement. It requires the impromitur of Court and such a decree cannot be issued without both the parties standing by the compromise and affirming their state of mind to have their marriage dissolved. In a recent article published in the Journal of Indian Law Institute (2010) 52 2 P.267 Dr. Virendera Kumar points out to the varying judicial responses to dissolution of marriage by mutual consent under Section 13B of the Hindu Marriage Act. He concludes his article after considering various different approaches, including that of the Hon'ble Supreme Court thus: