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Condition of 'living in separation for one year' for mutual consent divorce u/s 13B(1) Hindu Marriage Act can't be waived
Vishal Kushwaha Vs Ragini Kushwaha
Madhya Pradesh HC
FIRST APPEAL No. 950 of 2021
About/from the judgment:
The High Court recently held that the period of one year of living in separation is a must to the filing of an application for divorce by mutual consent under Section 13B(1) of the Hindu Marriage Act and that waiver of this period under Section 14 of the Act is not permissible.
The Court was dealing with first appeal under Section 28 of Hindu Marriage Act, 1956 preferred by the Appellant/husband against the order of the lower court, whereby the application for mutual divorce of the Appellant and his wife under Section 13B of the Act was rejected.
The case of the Appellant was that due to a strained relationship, he and his wife filed for a mutual divorce under Section 13B of the Act within 7 months and 24 days of their marriage. The lower court however, rejected their application on the ground that the same was filed prematurely, since under Section 14 of the Act, no application for divorce can be presented before expiry of the period of one year of marriage.
Placing reliance on the decision of the Calcutta High Court in Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity, the Appellant argued that pursuant to Section 14 of the Act, the application for mutual divorce could be entertained even before the expiry of one year from the date of marriage. He submitted that it is not mandatory to require compliance with mathematical precision and to warrant rejection for non filing of application under Section 14 of the Act. He asserted that the provision under Section 14(1) is directory in nature and not mandatory. He further submitted that since the application itself was pending before the court for more than a year, it consequently fulfilled the criteria under Section 14(1) and therefore, the lower court committed an error in dismissing the application for divorce with mutual consent.
The Appellant also argued that the said one year period can be waived by the court itself under the proviso to Section 14, when it appears that there are no chances of living together as husband and wife and their differences cannot be resolved. He submitted that both the parties were living separately for more than a year. Therefore, he concluded, it would be in the interest of justice, if the impugned order was set aside and decree on the basis of mutual divorce under Section 13B of the Act was granted.
The Court examined the provisions under Section 13B(1) and 14 of the Act and opined that the application and proceeding for divorce with mutual consent are independent of provisions under Section 14, since Section 13B is a complete code in itself-
Whereas under Section 14 of the Act, Court has the power to condone the statutory period of one year, required for filing a petition under Section 13 of the Act or any other provision contained in the said Act, from the date of the marriage. Therefore, under no circumstances, Section 14 of the Act can be invoked in the proceedings initiated under Section 13B of the Act…Section 13B when read is a complete Code in itself and, therefore, for filing a petition under Section 13B of the Act, the parties cannot be allowed to invoke Section 14 seeking waiver of the statutory period of one year from separation for filing a petition under Section 13B of the Act.
The Court further noted that proviso to Section 14 of the Act cannot be invoked to negate the mandatory requirements under Section 13B(1)-
Under the proviso to Section 14 of the Hindu Marriage Act, the parties can seek waiver of one year period in presentation of the divorce petition on the ground of hardship or due to exceptional depravity but the same cannot have the effect of diluting the mandate of Section 13(B)(1) of the Act, which clearly mandates separation of one year between the parties before presentation of their joint divorce petition. Sub-section (1) of Section 13B is an enabling Section for presenting a petition for dissolution of marriage by a decree of divorce by mutual consent. One of the grounds provided is that the parties have been living separately for a period of one year or more and have not been able to live together.
The Court observed that the decision of the Calcutta High Court in Priyanka Maity (Ghosh) was not applicable to the case in hand as in the said case, the divorce petition was filed under Section 13 HMA and not under Section 13B.
Referring to the decision in Amardeep Singh v. Harveen Kaur, the Court noted that even the Apex Court has not permitted either the Court or the parties to waive the statutory period of one year as provided under Section 13B(1). The Supreme Court had observed that court dealing with the matter should be satisfied that a case is made out to waive the statutory period under Section 13B(2) of the Act and should also be satisfied that the statutory period of one year as provided under Section 13B(1) of the separation of the parties is already over before the first motion itself. The Court also relied on the decision of the Bombay High Court in Principal Judge, Family Court v. NIL.
Collating its analysis, the Court concluded that parties living separately for a period of one year is a mandatory requirement under Section 13B(1) and is not directory-
After considering the overall scheme of the Act envisaged under Section 13B and 13B(1) of the Act, it is apparent that period of one year as living separately in Section 13B(1) of the Act is a part of the substantive law for seeking divorce by mutual consent and not a procedural formality that can be done away with. The condition of living separately for one year is not directory but mandatory and the requirement of law stated under Section 13B(1) should be satisfied before the Court gives any relief. The proviso of Section 14 of the Act which provides for the presentation of petition even before the lapse of a period of one year cannot be read into the provision of Section 13B(1), as both are independent of each other. Therefore, having considered the facts of the case and law as referred above, we are of the view that the period of one year of living in separation is a must to the filing of the petition under Section 13B(1) and waiver of this period is not permissible under Section 14 of the Act
With the aforesaid observations, the Court held that the mandate envisaged under Section 13B(1) providing a period of one year separation before the presentation of the petition to seek divorce by way of mutual consent cannot be waived under proviso to Section 14 of the Act, either on the application of the parties or suo motu by the Court, as separation of one year is prerequisite for invoking Section 13B(1) of the Act. The appeal was accordingly dismissed.
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