Speedy trial (21 b) - research

·         SAMPLE FOR SPEEDY TRIAL APPLICATION U/Sec. 21-B of HMA

·         IN THE COURT OF CIVIL JUDGE (Senior Division), -------------, 
Hon’ble Judge Shri. Saheb
At -----------------

[H.M.P. /2010]
Mr. -------------------------------- - Petitioner             vs.               Mrs. ------------------------------- - Respondent

THE APPLICANT HUMBLE REQUEST TO THIS HON’BLE COURT THAT - 

That the applicant wants to treat this case in fast trial mode under the provisions of 21 (B) mentioned in Hindu Marriage Act 1955. The suit for divorce is filed by the applicant against the respondent on the ground of cruelty & other charges mentioned in the petition. 

The current age of the applicant must be taken into cognizance by this Hon’ble Court as the delay in this trial can cause destruction of the remaining life of the Applicant. “RIGHT TO LIFE” has been given by Art. 21 of CONSTITUTION OF INDIA to every Indian citizen. If there is delay in the said case caused by any type of obstruction created by the respondent then the Right given by the Constitution of India can be violated in concern with the Applicant. This causes irreparable loss to the Applicant & his whole family, because Applicant is the only son of his parents.

The provision in HINDU MARRIAGE ACT 1955 is very clear as given below to run the trial in matrimonial matters expeditiously i.e fastely & conclude it within 6 months from the date of service of notice to respondent.

* PROVISION IN “THE HINDU MARRIAGE ACT 1955” CAN BE READ AS FOLLOWS:
21B. Special provision relating to trial and disposal of petitions under the Act.
1) The trial of a petition under this Act shall, so far as is Practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be, necessary for reasons to be recorded.
2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.
3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

So it is my humble request to the Ho’ble Court to take appropriate & necessary steps for Speedy trial in this case as per the provisions mentioned in law. 
For this act of kindness the Applicant shall ever pray & bound by the order in favour of Applicant passed by this Hon’ble Court. 

PLACE :              Date :                              APPLICANT                                 SIGN 
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This application submitted with the case law for speedy trial by SC in Salem Advocates Bar Association, T.N. v. Union of India, [2003] 1 SCC 49CASE.
1. Arun Kumar Agarwal vs Radha Arun And Anr.
2. Ashok Kumar Kanaujjia [U/Art. 227] vs Additional Principal Judge,Family Court
3. Darshan Lal Bajalia vs Suman                                                4. Neeru Soni vs Rahul Soni 
5. Smruti Navin Naulakha vs Navin Subhash Naulakha                   6. Narayana Nadar vs Jayakodi Ammal

21B     Special provision relating to trial and  disposal of petitions under this Act

(1)          The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2)          Every petition under this Act shall be tried as expeditiously as possible and endeavor shall be made to conclude the trail within six months from the date of service of notice of the petition on the respondent

(3)          Every appeal under this Act shall be heard as expeditiously as possible, and endeavor shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

Maintenance/marriage petition/case under sec. 138 of N.I. Act are to be speedily disposed off.

(https://court.mah.nic.in/courtweb/static_pages/faq.php)

Exceptional hardship - special grounds for 21B

1.    Multiplicity of litigations / proceedings would be avoided. (Dehli HC)

2.    Life & limb apprehension – threats received from BIL & MIL (NC filed)

3.    Right to life - Art. 21 – Constitution of India.

4.    Current age – only son – need of lawful marriage

Rameshchandra Rampratapji Daga vs Rameshwari Rameshchandra Daga on 20 Jan., 2000 – Bombay HC.

The appellant contended that after the death of his wife Usha, it became necessary to have some person to look after his three children and, therefore, he employed the respondent as a 'caretaker' or governess.

M.M. Malhotra vs Union Of India And Ors on 4 October, 2005 – SC.

Calcutta High Court

Shrimati Sikha Gorai vs Subodh Chandra Gorai on 10 June, 2003

https://indiankanoon.org/doc/1134800/

No Court in my opinion can act against the spirit of law.

Uttaranchal High Court                                                      https://indiankanoon.org/doc/144059419/

Khushi Ram Kandwal, vs Smt. Jaya Kandwal, on 15 September, 2011

Considering the provision of sub-section (2) of Section 21B of the Hindu Marriage Act, 1955, in the interest of justice, the Principal Judge, Family Court, Dehradun is directed to decide the O.S. No. 178 of 2007 Khushi Ram Kandwal Vs. Smt. Jaya Kandwal, on merits in accordance with law, expeditiously, preferably within a period of six months from the date of production of a certified copy of this order. Both the parties shall co-operate in the speedy disposal of the divorce petition before the court concerned.

Kolkata High Court (Appellete Side)                               https://indiankanoon.org/doc/1050618/

3073/2011 on 14 September, 2011

The revisional application stands disposed of with a request to the learned Judge of the trial Court to proceed with utmost expedition. Subject to her convenience and without granting unnecessary adjournment, sincere endeavour ought to be made so as to conclude the trial and decide the suit by April, 2012. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as quickly as possible.

Madras High Court                                                                          https://indiankanoon.org/doc/80781/

Narayana Nadar vs Jayakodi Ammal on 17 October, 1989

Matrimonial proceedings should be dealt with expeditiously and relief afforded to the parties. That is why a special provision is made under Section 21B of the Act to the effect that proceedings should be tried as expeditiously as possible and concluded within six months from the date of service of notice and that the trial of the proceedings should also be continued day-to-day until its conclusion. A further provision is also made that an appeal should also be heard as expeditiously as possible and should be concluded within three months of the service of notice of appeal. Section 21-B thus clearly gives expression to the need for speedy and expeditious disposal of matrimonial causes.

Delhi High Court                                                                   https://indiankanoon.org/doc/1319570/

Savitri Balchandani vs Mulchand Balchandani on 14 February, 1986          

(35) All matrimonial proceedings need to be decided expeditiously and the proceedings shortened Infact Section 21B of the Act, requires that as far as possible the trial should conclude within six months of the service of notice on the respondent and the appeals disposed off with in three months from the service of notice of appeal on the respondent.

(39) All matrimonial proceedings need to be decided expeditiously It is desirable that matrimonial litigation be shortened, in fact Section 21B of the Act requires it, and multiplicity of proceedings of matrimonial nature be prevented

Delhi High Court                                                                   https://indiankanoon.org/doc/548589/

Prem Nath Sarvan vs Prem Lata Sarvan on 3 March, 1986   

Liberty to the parties to move an application before the trial court under Section 21B, if they so desire.

Madhya Pradesh High Court                                             https://indiankanoon.org/doc/1586124/

Lila Sahu vs Kailash Narayan Sahu on 12 November, 1990

The Matrimonial Court is directed to proceed with the trial of the case expeditiously, as Contemplated by the provisions of Section 21B of the Act.

Karnataka High Court                                                         https://indiankanoon.org/doc/1784934/

Arun Kumar Agarwal vs Radha Arun And Anr. on 12 September, 2003

Having regard to the fact that the matter has been pending for several years and having regard to Section 21-B of the Hindu Marriage Act, 1955 the Family Court is requested to expedite hearing and disposal of M.C. No. 521 of 2000.

Punjab-Haryana High Court

Darshan Lal Bajalia vs Suman on 17 May, 2011                        https://indiankanoon.org/doc/360962/

Keeping in view the provisions of the sub section (2) of Section 21-B of the Act and the fact that the respondent wife who is residing in Chandigarh itself and has already availed sufficient opportunities, I deem it necessary and expedient in the interest of justice to dispose of the present revision petition with a direction to the learned trial court to dispose of the aforesaid divorce petition expeditiously and preferably within three months from the next date of hearing.

Punjab-Haryana High Court

Neeru Soni vs Rahul Soni                                                               https://indiankanoon.org/doc/852046/

It is ordered that taking into consideration the provisions of Section 21-B of the Hindu Marriage Act, the petition for divorce will be decided expeditiously. Allowed.

Bombay High Court                                                 https://indiankanoon.org/doc/900790/

Smruti Navin Naulakha vs Navin Subhash Naulakha on 9 April, 2002

The Family Court, Pune is hereby directed to decide that matrimonial petition within six months as indicated by section 21-B of Hindu Marriage Act.

Delhi High Court                                                                   https://indiankanoon.org/doc/1495140/

Vinay Kumar vs Nirmala Chauhan on 7 April, 1986

Equivalent citations: AIR 1987 Delhi 79, ILR 1986 Delhi 341, 1986 RLR 386

Author: M Narain

Bench: M Narain

JUDGMENT

Mahinder Narain, J.

(1) This is an appeal by the husband against the judgment of Shri R. C. Jain, Additional District Judge, Delhi, dated 9-7-1985, passed in H.M.A. No. 485 of 1984, whereby the husband's petition for dissolution of marriage on the grounds of desertion by the respondent wife without his consent, and against his wishes was dismissed.

(2) The facts, as they emerge from the record of the case are, that the parties were married on 10-5-1980 at village Pure Chauhan, District Partapgarh, U.P. They lived together at village Gahrenda, District Unnao (U.P.) for a short while, till June, 1980. Thereafter they lived together as husband and wife at Delhi at B-69, Gulmohar Park from July, 1980 to August, 1980.

(3) In August. 1980, the respondent wife left her matrimonial home at Gulmohar Park and did not return soon thereafter. It was on intervention of a third party, that she returned to the petitioner/appellant only in December, 1980. Thereafter she lived in Gulmohar Park till March 1981, when she left the appellant again. The respondent came back to the appellant in December 1981 and again left the respondent on 27th March, 1982. This time she left the appellant for good.

(4) The appellant relying upon the respondent's conduct of leaving him finally on 27th March, 1982, filed a petition under Section 13(1)(ib) of the Hindu Marriage Act, alleging that the respondent had left the appellant on 27th March, 1982 without his consent and against his wishes, that she had thus deserted the petitioner husband. As she had left the appellant two years prior to the filing of the petition, he prayed for a decree of divorce from the wife.

(5) Service on the respondent was effected in the court below but the respondent did not choose to appear before the court, nor did she file any written statement. This service was effected by publication.

(6) Before me in an application for condo nation of delay in filling the appeal was filed. In that too the service was effected by way of publication in 'Nav Bharat Times' dated 2-3-1986. No body appeared before me on that date. I admitted the appeal, and in view of Section 21B of the Hindu Marriage Act, as the proceedings were to be ex parte, directed the listing of this appeal before me today.

(7) No body has appeared even today. I have heard the submission of the counsel for the appellant and have perused the impugned judgment and also the statement of the appellant given in the court. There is unrebutted statement of the appellant/ husband that the respondent left him and the matrimonial home on 27-3-1982, that she left without his consent, and against his wishes. From the statement of the husband it is clear that the wife did not get along either with the husband or his parents, that she used to use abusive language, throw things about, deny s*x to the husband during the time she lived with him, and even threatened to put the matrimonial home to fire. All this was stated in the petition. I am satisfied that the facts deposed to establish that the wife intended to bring matrimonial cohabitation to a close.

(8) The learned Additional District Judge is in error in thinking that the husband has condoned the desertion by taking the wife back. The wife had returned on occasions earlier than 27-3-1982. condo nation is not for all times. The concept of "condo nation" of matrimonial offence has to be taken together with the concept of "revival" of matrimonial offence, i.e. conduct of leaving the matrimonial home without consent and against the wishes of husband. Each act of leaving without consent and against the wishes of husband will revive the past matrimonial offence, and wipe out condo nation, if any. In my view there is no question of condo nation in this case as the respondent has been in continuous desertion from 27-3-1982 till the date of filing of the petition i.e. 27-9-1974. More than two years of desertion had existed on the date of filing of the petition. The petition having been filed more than two years after the wife left the matrimonial home, desertion by the wife stands estalished. There is no condo nation in fact as the wife did not come back.

(9) In this view of the matter the petitioner/appellant is entitled to a decree of divorce under Section 13(1)(b) of the Hindu Marriage Act, as the respondent has been in continuous desertion for more than two years of the date of filing of the petition for divorce.

Rajasthan High Court                                                         https://www.indiankanoon.org/doc/1402996/

Girdhari Lal vs Smt Anita Alias Kamli And Anr on 5 September, 2011

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR

O R D E R

S.B.Civil Writ Petition No.11577/2011

Girdhari Lal vs. Smt.Anita @ Kamli & Anr.

DATE : 5th September, 2011

HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I

Mr.Anshuman Saxena, for petitioner.

***

Heard learned counsel for petitioner.

2. Petitioner has preferred this writ petition with a prayer that Family Court No.2, Jaipur (respondent No.2) may be directed to conclude and decide the application No.532/2009, titled As Girdhari Lal Vs. Anita, pending before it, under Section 13 of the Hindu Marriage Act, within a period of three months.

3. Learned counsel for petitioner submitted that petitioner filed an application under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act')for grant of divorce on the ground of cruelty against respondent No.1 in Family Court No.2, Jaipur City, Jaipur way back on 13th May, 2009, wherein respondent No.1 appeared at her own on 19th May, 2009, thereafter the case was fixed for re-conciliation, but matter could not be reconciled, thereafter respondent did not file reply immediately and took one year's time in it and ultimately reply was filed on 7th May, 2010, the statement of petitioner has been recorded on 28th July, 2011 and now case is fixed for his cross-examination on 6th September, 2011.

4. He further submitted that as per sub-section (2) of Section 21B of the Act, every petition under this Act is to be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent. He submitted that respondent No.1 is delaying the proceedings of the case, therefore, a suitable direction be given to the concerned Court to conclude the trial of the case within reasonable period.

5. I have considered the submissions of learned counsel for petitioner and examined the copy of order sheets of Family Court No.2, Jaipur from 19th May, 2009 to 28th July, 2011.

6. The certified copy of application under Section 13 of the Act has also been placed on record, which was filed in the concerned court on 13th May, 2009. From the order sheets, it appears that respondent No.1 herself appeared before the Court concerned at her own on 19th May, 2009 and she is regularly attending the case in the Court below. The re-conciliation proceedings took place on 1st August, 2009, but the same failed. Thereafter, case was fixed for reply to application, but after taking number of adjournments, the reply was filed on 7th May, 2010. Now petitioner's statement i.e. examination-in-chief has been recorded on 28th July, 2011 and case is fixed for his cross-examination on 6th September, 2011.

7. Section 21B was inserted in the Act with effect from 27th May, 1976 and it was provided that trial of the petition under this Act be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. In sub-section (2), it is provided that every petition under this Section shall be tried as expeditiously as possible, and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent. From the above referred provisions of the Act, it is clear that every petition under the provisions of the Act is to be taken on day to day basis and endeavour has to be made to conclude the trial within six months, however, we are aware that number of cases are pending in the Subordinate Courts and it is very difficult to take every case on day to day basis and to conclude the trial within a period of six months, but after considering the proceedings, in the present case, it appears that more than a reasonable time was granted to respondent No.1 to file reply and a long date is being given in the case. In these circumstances, I am of the view that this is a fit case wherein a direction can be given to the concerned Court to proceed in the case on day to day basis or at least to fix the case once a week and to conclude the trial within four months positively.

8. Consequently, the writ petition is disposed off with a direction to the learned Judge, Family Court No.2, Jaipur to proceed in application No. 532/2009 titled As Girdhari Lal Vs. Anita on day to day basis or to fix the said case at least once a week and to complete the trial of the case as early as possible, but not later than a period of four months from the date of receipt of certified copy of this order.

9. Registry is directed to send the copy of this Order to the concerned Court for compliance.

(NARENDRA KUMAR JAIN-I),J.

Sanjay