Bombay High Court 1 FCA201.13 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FAMILY COURT APPEAL NO. 201 OF 2013 WITH CIVIL APPLICATION NO. 300 OF 2013 IN FAMILY COURT APPEAL NO. 201 OF 2013 MITTAL RAMESH PANCHAL ) having address at D-501, Kalp Nagari) Bal Rajeshwar Road, Vaishali Nagar ) Mulund (West) MUMBAI 400 080 )..APPELLANT NO. 1 (Orig.Petitioner No. 1) MANOJ DAYALAL PANCHAL ) having address at A-1, Flat No. 2 ) Mahendra Garden,Near Patkar College S.V. Road, Goregaon (West) ) Mumbai 400 062. )..APPELLANT NO. 2 (Orig.Petitioner No. 2) Versus NIL Mr. Ram Mani Upadhyay, Advocate for the appellant No.1 Mr. Satyendrakumar R. Sharma, Advocate for the appellant No.2. CORAM:-SMT. V.K. TAHILRAMANI & V. L. ACHLIYA, JJ. DATE ON WHICH JUDGMENT IS RESERVED: 27th November, 2013 DATE ON WHICH JUDGMENT IS PRONOUNCED: 23rd December, 2013.
JUDGMENT: (Per V. L. Achliya, J.)
This appeal is directed against the order dated 5/10/2013 passed by Judge, Family Court No.7, Mumbai, in Petition No. F – 1919/2013 whereby the joint petition u/s 13-B of Hindu Marriage Marriage Act, 1955 filed by appellants seeking divorce by mutual consent was rejected. 2 In brief the facts leading to filing of appeal are as under: The facts of the present case are very peculiar and most unusual. The appellants No. 1 and 2 were married on 29/4/2007 at Mumbai, as per the Hindu rites and rituals. Their marriage was also registered with the office of Registrar of Marriage, Mumbai Suburban Office at Bandra, Mumbai. Within a year of their marriage, the disputes arose between them due to incompatibility, inequality and differences in their thoughts. They decided themselves to be separated from their conjugal society. Their family members, well wishers and friends tried their level best to resolve the dispute but it resulted into vain. Thereafter appellants decided to dissolve their marriage by mutual consent. As per the advice received, they executed the document titled as “Deed of Divorce” on 13/6/2011, which was notarized before notary. At that time they were not aware that such divorce is not recognized under law. After execution of deed of divorce both the appellants remarried. The appellant No. 1 married to one Mr. Dimpu Bhailal Shah on and by 10/8/2012 as per Hindu rites and rituals. Their marriage was solemnized at Mumbai. The husband of appellant No. 1 claims to be permanent resident of U.S.A, where he is serving as Desk Top Telecommunication Operator. The appellant No. 1 claims to be holding degree of Master of Business Administration in Human Resources. Her husband, made an application for seeking VISA for her so as to join her conjugal society and employment in U.S.A. She received letter dated 12/8/2012, from American Consulate to appear for interview at US Embassy / Consulate in Mumbai, on 16/9/2013 for issuing Visa. Pursuant to that letter she appeared before the concerned authority. However, the Visa was not issued. She was informed vide letter dated 16/9/2013 from US Embassy that they are unable to issue Visa to her as she has not produced a decree of divorce from Indian Court. On receipt of letter dated 16/9/2013, for the first time she came to know that Deed of Divorce dated 13/6/2011 executed between herself and her husband i.e. appellants, is not a valid decree in the eyes of law. She, therefore, consulted an advocate, who in turn apprised her the procedure for obtaining the decree of divorce from Family Court. She was also told that she will have to wait for six months from the date of presentation of petition for obtaining decree of divorce by mutual consent. The appellant No. 1 and her family members approached the appellant No. 2 and apprised him the difficulty which she is facing in obtaining the Visa and the requirement of decree of divorce from the competent court. Considering her difficulty the appellant No. 2 readily agreed to cooperate with the appellant No. 1 in obtaining a decree of divorce by mutual consent from Family Court. Accordingly the appellants have filed joint petition u/s 13-B of Hindu Marriage Act, 1955, before the Family Court, Mumbai, which was registered as Petition No. F – 1919/2013. Besides filing the joint petition for divorce by mutual consent, they have also made application to waive the six months' waiting period in passing the decree by assigning the reasons in detail for waiver of such statutory period. However, the learned Judge, Family Court, Bombay, vide order dated 5/10/2013 rejected the petition. Being aggrieved by said order, the appellants have approached this court by way of this appeal. 3 We have heard the learned advocates representing appellants and further perused the copies of record and proceedings of Petition No. F – 1919/2013 as made available by the appellants. After carefully going through the pleadings and order impugned, we are of the opinion that the impugned order is not sustainable, both on facts and in law. 4 The learned judge of the Family Court has primarily rejected the petition on the premises that the marriage between the appellants already dissolved by Deed of Divorce dated 13/6/2011, as per the custom and usage prevailing in the caste and community and, therefore, the petition filed u/s 13-B of Hindu Marriage Act is not maintainable. The learned Judge has further rejected the petition by observing that the Deed of divorce dated 13/6/2011 being an agreement between the appellants, the same cannot be set aside except on the ground that the said agreement was executed by exercising fraud, coercion, misrepresentation, undue influence etc. on the part of either of the parties to the said agreement. The learned Judge has further rejected the petition on the ground that the marriage between the appellants already dissolved by virtue of Deed of Divorce Deed dated 13/6/2011, executed between them and, therefore, no petition u/s 13-B of the Hindu Marriage Act can be entertained. 5 We are of the view that the reasons and findings recorded by the learned Judge as to the maintainability of the petition are not legally sustainable. In our view, while dealing with the petition u/s 13-B, the Court is expected to confine its inquiry on following aspects: (i) Whether the marriage has been solemnized between the parties; (ii) Whether the parties have been living separately for more than a year before presenting the petition;
(iii) Whether they were not able to live together at the time of presenting the petition and continue to live apart; (iv) Whether they had mutually agreed to dissolve the marriage before or at the time the petition was presented, and (v) Whether the averments made in the petition are true and conditions under S. 23 are fulfilled. On making limited inquiry, if the court is satisfied that aforesaid conditions are fulfilled, the decree of divorce deserves to be passed in such matter. 6 Once the aforesaid statutory conditions are satisfied then it gives jurisdiction to the court to entertain a petition for divorce by mutual consent. If the aforesaid conditions are fulfilled then the court is bound to entertain the petition and pass appropriate order in the matter. However, the learned Judge, instead of making limited inquiry, as contemplated u/s 13-B of Hindu Marriage Act, dealt with the issues which were not at all attracted in the matter. 7 Marriage under the Hindu Law are not treated as a contract simplicitor between two individuals. Under the Hindu Law, it is treated as a sacrosanct relations between two human beings placing certain obligations and duties against each other. This position exists right from ancient times. So also the divorce in Hindu Marriage was concept difficult of attainment and governed by stringent laws. No provision in Hindu Law by itself operates as a dissolution of marriage nor it gives either party to the marriage an automatic right of divorce. 8 As discussed in the foregoing para, the appellants have approached with a specific case that their marriage was not legally dissolved by virtue of Deed of Divorce executed on 13/6/2011 and, therefore, in the circumstances narrated in detail in the petition, the appellants have sought the decree of divorce by mutual consent by filing petition u/s 13-B of Hindu Marriage Act. The appellants have neither pleaded nor argued before the Family Court that their marriage was legally dissolved as per custom and usages prevailing in their caste and community. On the contrary they have specifically pleaded that at the time of the execution of Deed of Divorce they were not knowing the procedure recognized under the law for dissolution of marriage. The customary divorce can either be plea or defence setup by one of the party to such proceeding wherein the issue in respect of legality of the divorce by customary mode is involved. Without any pleadings to that effect the learned Judge on his own inferred the case of customary divorce. Therefore, the rejection of petition for this reason also not sustainable in law. 9 The learned Judge has also rejected the petition by observing that the marriage between the appellants already dissolved by virtue of Deed of Divorce dated 13/6/2011, i.e. as per custom and usages prevailing in their caste and community and, therefore, the petition u/s 13-B of Hindu Marriage Act is not maintainable. This conclusion to which the learned Judge has arrived are not sustainable, both on facts and in law. There is no provision under the Hindu Marriage Act which provides for automatic dissolution of marriage. The dissolution of marriage as per custom and usages is one of the mode of dissolution of marriage recognized under the law. In general, the marriage can be dissolved only by recourse to the provisions contained in the Hindu Marriage Act. In the present case the appellants have approached with a case that while execution of Deed of Divorce dated 13/6/2011 they were not aware that such dissolution of marriage is not recognized under the law. They had acted under the belief that the marriage can be dissolved by execution of Deed of Divorce. Only after the refusal of Visa to appellant on the ground of non production of a Decree of Divorce from competent court, the appellants realized that the competent court alone can pass Decree of Divorce. Thus the appellants, though acted under impression that their marriage was dissolved by virtue of Deed of Divorce executed between them and remarried after the execution of said Deed, but legally the marriage between the appellants still subsists. Therefore, the petition filed u/s 13-B of Hindu Marriage Act, is maintainable in law. 10 The statutory period of six months provided u/s 13-B(2) has been provided with a specific intent that the possibility of last minute reconciliation can be worked out in such matters. In dispensation of justice, the courts are expected to do the justice between the parties by overcoming the technical difficulties, coming in the way of imparting justice. The waiver of statutory period of six months though not specifically provided but same can be read in provisions as the main object of provision is to libralize divorce. The provision cannot be read in rigidity so as to make the provision ineffective and meaningless. The period of six months is nothing but period provided with a view to enable parties to reconsider their decision and instead of dissolving their marriage resolve their differences. It was never the intention of the legislature that such period is to be observed irrespective of the facts of the case wherein the marriage has been irretrievably broken and there are no chances of reconciliation between the parties or it would be futile exercise to wait for six months. 11 While legislating the law, it is not possible for legislature to foresee all possible circumstances, which may arise in future. In order to overcome such situation in Code of Criminal Procedure as well as Code of Civil Procedure, the inherent powers have been conferred upon the court of law by making specific provision to that effect in both the enactments. Section 151 of Civil Procedure Code provides inherent powers in court to overcome the situation which was not visualized by the legislature. Section 151 provides inherent powers in courts to make such orders as may be necessary to meet the ends of justice or to prevent abuse of process of law. Thus in any peculiar or extraordinary situation where the procedural law are inadequate to address such problem, the recourse of inherent powers u/s 151 of the Civil Procedure Code can always be resorted by courts of law. 12 We have already discussed in the foregoing para, the facts and circumstances under which the appellants have approached the Family Court by way of petition for divorce by mutual consent. The facts of the case are very peculiar and unusual. The appellant and the respondent have dissolved their marriage by Deed of Divorce executed on 13/6/2011. Since the execution of Deed of Divorce, they were acting under the belief that their relationship as that of husband and wife has ceased to operate w.e.f. 13/6/2011 and by virtue of alleged Deed, the marriage between them has been dissolved. Acting under that belief the appellants have re-married. The appellant No. 1 is claimed to have married to a person who is permanent resident of U.S.A. After marriage the husband of the appellant returned back to America. He has searched a job for the appellant in America and also taken steps to take her to U.S.A. He has applied for Visa for the appellant. The U.S. Consulate has denied the Visa to the appellant for the reason that she has not produced the order passed by the competent court in respect of dissolution of her earlier marriage. 13 In such situation there is no option available with the appellants except to approach the competent court of law for dissolution of their marriage by mutual consent u/s 13-B of Hindu Marriage Act. Since the marriage between the appellants legally subsists, the petition u/s 13-B can be entertained by Family Court. There appears no legal impediment in entertaining the petition for divorce by mutual consent, filed by the appellants. As discussed in the foregoing paras, both the appellants acting under the bonafide belief that their marriage has come to an end on execution of Deed of Divorce dated 13/6/2011, remarried, no fruitful purpose could be achieved by forcing the parties to wait for six months in passing of decree. In view of re-marriage of appellants, there is no question of reconciliation, re-union between the appellants. While enacting the provisions of Section 13-B, the legislature never contemplated such situation. In such situation court may take recourse to its inherent powers u/s 151 of the Civil Procedure Code to meet the ends of justice. 15 We are, therefore, of the view that impugned order is not sustainable in law and liable to be set aside. Hence the appeal is allowed. The order passed in Petition No. F- 1919/2013 by Judge Family Court, Mumbai, is set aside. The original petition filed by the appellants is restored to the file. The case is remanded back to Family Court, Mumbai. The parties are directed to appear before Principal Judge, Family Court on 2/1/2014. On appearance of the parties, the Principal Judge, Family Court is directed to hear and dispose of the petition for divorce by mutual consent filed by the appellants as expeditiously as possible. 16 In view of the disposal of the appeal,
