Neeti Malviya vs Rakesh Malviya

Neeti Malviya ... Petitioner

VERSUS

Rakesh Malviya ... Respondent

ORDER

This transfer petition has been filed by the petitioner-wife, seeking

transfer of the Divorce Petition M.C. No.2168 of 2006 titled as Rakesh

Malviya Vs. Neeti Malviya, filed by the respondent-husband, from the

court of Additional Principal Judge, Family Court, Bangalore (Karnataka)

to the Family Court, Hoshangabad (Madhya Pradesh).

2. After issuance of notice on 7th December 2007, efforts were made on

various occasions to bring about a comprehensive settlement of the

matrimonial discord between the parties. On 6th September 2008, the

parties agreed for mediation. Accordingly, the parties were referred to

the Delhi High Court Mediation Centre. Ultimately, in proceedings 2

before the Supreme Court Lok Adalat held on 25th April 2009, it was

reported that the parties had arrived at a settlement. The settlement

agreement dated 24th April 2009 was taken on record. The relevant

portion of the order passed on 25th April 2009 is extracted below:

"...One of the terms so agreed upon is that the husband is to pay to the wife an amount of Rupees sixty five lakhs on or before 28th February, 2010. It is now agreed before us that the said amount of Rupees sixty five lakhs shall be deposited in this Court as per the schedule of dates mentioned in the agreement. The amount, so deposited, shall be put in a Fixed Deposit Receipt for a period upto 1st May, 2010.

..... ..... ..... .....

It is also agreed that when full amount in terms of the agreement is deposited, the parties shall, immediately thereafter, move a joint application for grant of divorce by mutual consent. On the passing of the decree for divorce, the amount deposited in this Court shall be released to Neeti without any delay."

3. The matter remained pending for some time but the parties continued to

discharge their obligations under the terms of settlement and when the

case came up for hearing on 29th January 2010, it was stated that the

respondent-husband shall deposit the last instalment of money, in terms

of the settlement, by 28th February 2009, which was done. However,

when the matter came up for final orders on 10th May 2010, learned

counsel for the parties sought time to go through the two judgments of

this Court in Manish Goel Vs. Rohini Goel1 and Smt. Poonam Vs. 1 2010 (2) SCALE 332 3

Sumit Tanwar2, and assist the Court on the question whether the period

of second motion in terms of sub-section (2) of Section 13-B of the

Hindu Marriage Act, 1955 (for short "the Act") can be waived or

reduced by this Court.

4. We have heard learned counsel for both the parties.

5. Sub-section (1) of Section 13-B of the Act is the enabling Section for

presenting a petition for dissolution of marriage by a decree of divorce

by mutual consent, on the ground that the parties have been living

separately for a period of one year or more, that they have not been able

to live together and that they have mutually agreed that the marriage

should be dissolved. Sub-section (2) of Section 13-B of the Act

provides the procedural steps that are required to be taken once the

petition for divorce by mutual consent has been filed and six months

have expired from the date of presentation of the petition before the

Court. The language of sub-section (2) is unambiguous and provides

that on the motion of both the parties made not earlier than six months

after the date of the presentation of the petition referred to in sub-section

(1) and not later than eighteen months after the said date, if the petition

is not withdrawn in the meantime, the Court shall, on being satisfied,

after hearing the parties and after making such inquiry as it thinks fit,

2 JT 2010 (3) SC 259 4

pass a decree of divorce declaring the marriage to be dissolved with

effect from the date of the decree.

6. As already stated, the language of the said provision is clear and prima

facie admits of no departure from the time frame laid down therein, i.e.

the second motion under the said sub-section cannot be made earlier

than six months after the date of presentation of the petition under sub-

section (1) of Section 13-B of the Act.

7. The question with which we are concerned in the present petition is

whether in view of the settlement arrived at between the parties, a

decree of divorce by mutual consent can be granted by this Court

without waiting for the statutory period of six months in terms of

Section 13-B(2) of the Act. In other words, the question for

consideration is whether or not this Court can reduce or waive of the

statutory period of six months, as stipulated in the said provision?

8. At the outset, we may note that in several cases this Court has been

invoking its extraordinary powers under Article 142 of the Constitution

of India and passing a decree of divorce by mutual consent without

waiting for the statutory period of six months to expire. As a matter of

fact, even the family courts in some States, following the ratio of the

decisions or the directions by their respective High Courts, have been

reducing the period of second motion when they were convinced that 5

there was no possibility whatsoever of the spouses coming back

together again and granting decree of divorce by mutual consent in

terms of the settlement arrived at between the parties in order to give

quietus to all the litigations pending between them.

9. In fact, in Anjana Kishore Vs. Puneet Kishore3, a Bench of three

Judges of this Court, while hearing a transfer petition, invoked its

jurisdiction under Article 142 of the Constitution and directed the

parties to file a joint petition before the family court under Section 13-B

of the Act, for grant of decree of divorce by mutual consent, along with

a copy of the terms of compromise arrived at between the parties. The

Court further permitted the family court to consider dispensing with the

need of waiting for expiry of a period of six months as required by sub-

section (2) of Section 13-B of the Act and pass final orders on the

petition within such time as it deems fit.

10.The issue with regard to the jurisdiction of the High Court and the

matrimonial court to reduce or waive of the period of second motion in

terms of sub-section (2) of Section 13-B of the Act fell for consideration

of this Court in Anil Kumar Jain Vs. Maya Jain4, though in a different

context. Taking note of a number of earlier cases where decree of

divorce by mutual consent had been granted by this Court without

3 (2002) 10 SCC 194 4 (2009) 10 SCC 415 6

waiting for the expiry of statutory period of six months, it was held that

neither the civil courts nor even the High Courts can pass orders before

the period prescribed in Section 13-B(2) of the Act has expired. The

Court opined that it is only this Court, in exercise of its extraordinary

powers under Article 142 of the Constitution, that can grant relief to the

parties without even waiting for statutory period of six months

stipulated in Section 13-B of the Act.

11.However, recently in Manish Goel (supra) and Smt.

Poonam (supra), this Court while taking note of the decisions in

Anjana Kishore (supra) and Anil Kumar Jain (supra) has also referred

to various other judgments of this Court taking a contrary view and has

observed that under Article 142 of the Constitution, this Court cannot

altogether ignore the substantive provisions of the statute and pass

orders concerning an issue which can be settled only through a

mechanism prescribed in a statute. The Court has also observed that

power under Article 142 of the Constitution is not to be exercised in a

case where there is no basis in law which can form an edifice for

building up a structure. Reference has also been made to the decision of

the Constitution Bench in Prem Chand Garg Vs. Excise

Commissioner, U.P., Allahabad5, wherein it was held that an order

which this Court can make in order to do complete justice between the

5 AIR 1963 SC 996 7

parties, cannot be inconsistent with the substantive provisions of the

relevant statutory laws. Inter alia, observing that no court has

competence either to issue a direction contrary to law or to direct an

authority to act in contravention of the statutory provisions, the Court

finally summarised the law on the issue before us to the effect that in

exercise of power under Article 142 of the Constitution, this Court

`generally' does not pass an order either in contravention of or ignoring

the statutory provisions or exercise power merely on sympathetic

grounds.

12.Although it can be gathered from the use of the word `generally' in

para 15 and the last paragraph of the judgment where the Court did not

find the case before it to be a fit case for exercise of its extra-ordinary

jurisdiction under Article 142 of the Constitution, that both the said

decisions do not altogether rule out the exercise of extraordinary

jurisdiction by this Court under Article 142 of the Constitution, yet we

feel that in the light of certain observations in the said decisions,

particularly in Manish Goel (supra), coupled with the fact that the

decision in Anjana Kishore (supra) was rendered by a Bench of three

learned Judges of this Court, it would be appropriate to refer the matter

to a Bench of three Judges in order to have a clear ruling on the issue for

future guidance.

8

13.Accordingly, we refer the following question for the consideration of a

Bench of three Hon'ble Judges:-

(I) Whether the period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by this Court in exercise of its jurisdiction under Article 142 of the Constitution?

14.We direct the Registry to place the papers of this case before the

Hon'ble Chief Justice of India for appropriate orders.

15.It is agreed between the parties that in the meanwhile, they will file a

joint petition under Section 13-B of the Act for grant of divorce by

mutual consent in terms of the settlement within two weeks from today.

We are informed that the fixed deposit for the amount deposited by the

respondent in terms of the settlement will be maturing for payment in

the first week of August, 2010. As and when the said fixed deposit

matures, a sum of Rupees two lacs and fifty thousand shall be paid to

the petitioner by means of a bank draft payable at Itarsi (Madhya

Pradesh). The balance amount along with interest accrued thereon shall

be put in a fresh fixed deposit for a period of six months.

16.List in the month of November, 2010.

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............................................J. [D.K. JAIN]

............................................J. [C.K. PRASAD]

NEW DELHI, MAY 12, 2010.