Smt. Sandhya Sen V. Sanjay Sen (2021) The High Court Held That An Existence Of Serious Dispute Between Husband And Wife Is Not Prerequisite For Grant Of Divorce By Mutual Consent Under Section 13-B Of The Hindu Marriage Act, 1955

CRUX: The High Court held that an existence of serious dispute between husband and wife is not prerequisite for grant of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955.

DATE OF JUDGEMENT: 06th April, 2021

JUDGES: Hon'ble Mr. Justice Prashant Kumar Mishra, Hon'ble Mr. Justice N.K. Chandravanshi

PARTIES

• Smt. Sandhya Sen (Plaintiff)
• Sanjay Sen (Respondent)

SUBJECT: The following judgement deals with the appeal challenging the decree of judicial separation passed by the trial Court in Civil Suit No.198/2018 vide judgment dated 12.12.2018 in the with proceedings for grant of mutual divorce under Section 13-B of the Hindu Marriage Act, 1955. Furthermore, the Court observed that Judicial separation, instead of divorce by mutual consent, cannot be granted in a mechanical manner.

AN OVERVIEW

1. The parties were married at Durg on February 20, 2017. The parties remained together only for 2 days and thereafter, have never lived as husband and wife
2. One year of the marriage, they preferred a joint application dated 13.3.2018 for divorce by mutual consent.
3. They were examined before the trial Court after completion of 6 months cooling off period
4. On further perusal the HC noticed that while granting a decree for judicial separation in place of a decree of divorce by mutual consent, the trial Court had referred to the provisions contained in Section 13-A of the Act, 1955, which states that in any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation the High Court opinioned.
5. The High Court opined that while passing the impugned decree, the trial Court has observed that the period of their staying together is so short that it is not possible that any serious dispute would have arisen between the parties.
6. Under our opinion, the HC observes that there need not be a serious dispute between a married couples for seeking a divorce by mutual consent, furthermore, It may happen in a given case that there is no quarrel or dispute between the couple but but yet their actions and behavior are not compatible with each other for living a happy and peaceful married life, therefore, they may seek divorce by mutual consent.

IMPORTANT PROVISIONS

HINDU MARRIAGE ACT, 1955

• Section 13(A)- In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section.

• Section 13(B)- in case of divorce by mutual consent, there has to be a composite period of 18 months of separation:

• One year provided in Section 13B (1)
• Six months in Section 13B (2)

ISSUES

In their deposition, they stood by their decision to seek divorce by mutual consent, however, the trial Court has refused to pass a decree of divorce by mutual consent and has instead passed a decree for judicial separation for a period of one year.

ANALYSIS OF THE JUDGEMENT

1. The application was signed, verified and supported by both the parties by filing their respective affidavits.
2. They were examined before the trial Court after completion of 6 months cooling off period.
3. Learned counsel for the appellant submits that there being no defect in the application or in the procedure for moving such application for grant of divorce by mutual consent, the trial Court should have allowed the application.
4. The High Court heard learned counsel for the appellant and perused the record.
5. On further perusal the HC noticed that while granting a decree for judicial separation in place of a decree of divorce by mutual consent, the trial Court had referred to the provisions contained in Section 13-A of the Act, 1955, which states that in any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation the High Court opinioned.
6. The phrase “having regard to the circumstances of the case” requires the trial Court to find out the circumstances which compels it to pass a decree for judicial separation. Unless such circumstances exist, the trial Court is not entitled to pass a decree for judicial separation in a mechanical manner.
7. The High Court opined that while passing the impugned decree, the trial Court has observed that the period of their staying together is so short that it is not possible that any serious dispute would have arisen between the parties.
8. Based off on this, the trial Court has assumed that the dispute between them might not be of such intensity which would force them to seek divorce by mutual consent, the High Court observed.
9. The High Court contended that under Section 13-B of the Act, 1955 it does not provide for existence of a ground like the ones contained in Section 13 for grant of divorce by mutual consent. Under our opinion, the HC observes that there need not be a serious dispute between a married couples for seeking a divorce by mutual consent, furthermore, It may happen in a given case that there is no quarrel or dispute between the couple but yet their actions and behavior are not compatible with each other for living a happy and peaceful married life, therefore, they may seek divorce by mutual consent.
10. Coming to a reasonable conclusion, the High Court held that, “if an application is otherwise duly constituted and properly presented before the Court, it is not for the Court to search for a ground or a reason, which has compelled the parties to seek divorce by mutual consent.”

CONCLUSION

The fact that the parties presented the application under Section 13-B by appearing before the trial Court on 13.3.2018 and again appeared on 7.4.2018, 27.10.2018, 4.12.2018 and 12.12.2018, the trial Court should have passed the decree of divorce by mutual consent instead of decree for judicial separation the High Court concluded. On the basis of the fact of the case, the High Court opinioned that we allow the appeal, set-aside the impugned decree of judicial separation and instead pass a decree of divorce by mutual consent.

Consequently, the Court ordered that the marriage between the parties solemnized on 20.2.2017 is dissolved by a decree of divorce by mutual consent and a decree be drawn accordingly. Lastly, the parties in this case, shall bear their own costs.

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