CM(M)/846/2017 of PUNAM GANDHI Vs MAHESH PAL SINGH

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+CM(M) 846/2017

PUNAM GANDHI

..... PetitionerThrough:Mr. S Bhullar, Ms. Sarabjeet Kaurand Ms. Bhawani Gupta, Advocates

versus

MAHESH PAL SINGHThrough:

..... RespondentTribikram, Advocate

CORAM:HON'BLE MR. JUSTICE J.R. MIDHA

O R R%15.09.2017

1.The petitioner is seeking waiver of statutory period of six monthsprescribed in Section 13 B(2) of the Hindu Marriage Act.

2.In Amardeep Singh vs. Harveen Kaur Civil Appeal No. 11158/ 2017decided on 12[th]September, 2017, the Supreme Court has held that the sixmonths period under Section 13 B(2) of the Hindu Marriage Act can bewaived off by the Family Court. Relevant portion of the said judgment isreproduced hereunder:-

“14. The Court must be satisfied that the parties were living separatelyfor more than the statutory period and all efforts at mediation andreconciliation have been tried and have failed and there is no chance ofreconciliation and further waiting period will only prolong their agony.15. We have given due consideration to the issue involved. Under thetraditional Hindu Law, as it stood prior to the statutory law on thepoint, marriage is sacrament and cannot be dissolved by consent. TheAct enabled the court to dissolve marriage on statutory grounds. Byway of amendment in the year 1976, the concept of divorce by mutualconsent was introduced. However, Section 13B(2) contains bar todivorce being granted before six months of time elapsing after filing ofthe divorce petition by mutual consent. The said period was laid down

to enable the parties to have rethink so that the court grants divorceby mutual consent only if there is no chance for reconciliation.

16. The object of the provision is to enable the parties to dissolve amarriage by consent if the marriage has irretrievably broken down andto enable them to rehabilitate them as per available options. Theamendment was inspired by the thought that forcible perpetuation ofstatus of matrimony between unwilling partners did not serve anypurpose. The object of the cooling off the period was to safeguardagainst hurried decision if there was otherwise possibility ofdifferences being reconciled. The object was not to perpetuate apurposeless marriage or to prolong the agony of the parties when therewas no chance of reconciliation. Though every effort has to be made tosave marriage, if there are no chances of reunion and there arechances of fresh rehabilitation, the Court should not be powerless inenabling the parties to have better option.

17. In determining the question whether provision is mandatory ordirectory, language alone is not always decisive. The Court has to havethe regard to the context, the subject matter and the object of theprovision. This principle, as formulated in Justice G.P. Singh’s“Principles of Statutory Interpretation” (9th Edn., 2004), has beencited with approval in Kailash versus Nanhku and ors.(2005) 4 SCC480 as follows:

“The study of numerous cases on this topic does not lead toformulation of any universal rule except this that language alonemost often is not decisive, and regard must be had to the context,subject-matter and object of the statutory provision in question, indetermining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laiddown as to whether mandatory enactments shall be considereddirectory only or obligatory with an implied nullification fordisobedience. It is the duty of courts of justice to try to get at the realintention of the legislature by carefully attending to the whole scopeof the statute to be considered.’

“ ‘For ascertaining the real intention of the legislature’, points outSubbarao, J. ‘the court may consider inter alia, the nature anddesign of the statute, and the consequences which would follow fromconstruing it the one way or the other; the impact of otherprovisions whereby the necessity of complying with the provisions inquestion is avoided; the circumstances, namely, that the statuteprovides for contingency of the non-compliance with theprovisions; the fact that the non-compliance with the provisions is orisnotvisitedbysomepenalty;theseriousorthetrivialconsequences, that flow therefrom; and above all, whether the objectof the legislation will be defeated or furthered’. If object of theenactment will be defeated by holding the same directory, it will beconstrued as mandatory, whereas if by holding it mandatory serious

general inconvenience will be created to innocent persons withoutvery much furthering the object of enactment, the same will beconstrued as directory.”

18. Applying the above to the present situation, we are of the view thatwhere the Court dealing with matter is satisfied that case is madeout to waive the statutory period under Section 13B(2), it can do soafter considering the following :

i) the statutory period of six months specified in Section 13B(2),in addition to the statutory period of one year under Section13B(1) of separation of parties is already over before the firstmotion itself;in addition to the statutory period of one year under Section13B(1) of separation of parties is already over before the firstmotion itself;

ii) all efforts for mediation/conciliation including efforts in termsof Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section9 of the Family Courts Act to reunite the parties have failed andthere is no likelihood of success in that direction by any furtherefforts;of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section9 of the Family Courts Act to reunite the parties have failed andthere is no likelihood of success in that direction by any furtherefforts;

iii) the parties have genuinely settled their differences includingalimony, custody of child or any other pending issues betweenthe parties;alimony, custody of child or any other pending issues betweenthe parties;

iv) the waiting period will only prolong their agony.

19. The waiver application can be filed one week after the first motiongiving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of the waitingperiod for the second motion will be in the discretion of the concernedCourt.

21. Since we are of the view that the period mentioned in Section13B(2) is not mandatory but directory, it will be open to the Court toexercise its discretion in the facts and circumstances of each case wherethere is no possibility of parties resuming cohabitation and there arechances of alternative rehabilitation.”

3.This petition is disposed of with liberty to the petitioner to approachthe Family Court for waiver of the statutory period under Section 13 B(2) ofthe Hindu Marriage Act in view of Amardeep Singh vs. Harveen Kaur(supra).

4.Copy of this order be given dasti to the learned counsel for thepetitioner.

5.Copy of this order be sent to the respondent.

SEPTEMBER 15, 2017

J.R. MIDHA, J.