ARTICLE 1 :

6-month wait for divorce a must, says HC

MUMBAI : A quick divorce may not exactly be easy to obtain even if both the husband and wife are willing. In an important judgment, the Bombay High Court has held that the six month "waiting period'' after filing for divorce by mutual consent under the Hindu Marriage Act is mandatory and can't be waived by courts. A division bench of Chief Justice Swatanter Kumar and Justice V M Kanade on Friday held that the family courts did not have the power to waive off this requirement. "No prejudice is caused to the parties (husband and wife) by merely waiting for a short period of six months before they take a vital and pertinent decision in regard to their marriage which is a social sacrament coupled with civil rights and obligations and which they had entered upon voluntarily,'' said the judges. "Impulsive and impatient decisions rarely guide the parties to the logical and correct decision. It is a period during which the parties are expected to ponder and seriously consider their decision to severe the matrimonial ties.'' The court's orders came after the principal judge of the family court in Nagpur referred the issue to the HC. The principal judge was confronted with a problem following a divorce petition filed by a Nagpur couple and divergent views on the matter. The couple Tushar and Meenal had got married on May 9, 2006. Due to differences they started living separately from September 2006. A year later on September 11, 2007, the couple filed a petition seeking divorce by mutual consent. They also urged the court to condone the six month waiting period. Under section 13 of the Hindu Marriage Act, a couple who are living separately for more than a year can file a petition for divorce by mutual consent. The section further provides for a minimum waiting period of six months, after which the couple can file a second application for dissolving the marriage. The court remarked that this waiting period is usually for the benefit of the couple so that they can reconsider their decision. "This kind of benefit is founded on a social outlook,'' said the judges. "If this procedure is condoned at the behest of parties it will amount to denial of the statutory benefit of rethinking. The statutory provision cannot be moulded to suit the convenience of parties.'' The Act provides for immediate divorce inder section 14 only if the grounds urged are cruelty or hardship. The 44-page judgment was penned by the Chief Justice who reiterated that despite the various provisions of the Act, it was intended to bring couples together. "The legislative policy of the Hindu Marriage Act is to protect the institution of marriage and prevent decay of social values relating to the institution of the family.'' The Chief Justice also sought to draw upon the origins of marriage in the Hindu society. "From the very commencement of the Rigvedic Age, marriage was a well established institution and the Aryan ideal of marriage was very high. Monogamy was the approved rule though polygamy existed to some extent. It is said that there is no real evidence to the existence of polyandry and matriarchy in the Vedic time,'' said the judge, who also referred to Manu's exhortations on honouring women and on the institution of marriage. "The husband receives his wife from the Gods, he must always support her while she is faithful,'' the judge quoted Manu in the judgment. The judge added, "In Hindu (society), marriage is one of the necessary sanskaras or religious rites. While marriage according to the Hindu law is a sacrament, it is also a civil contract which takes the form of a gift in the Brahma, a sale in the Asura and an agreement in the Gandharva.''

ARTICLE 2 :
Bill in Rajya Sabha to make divorce easier
NEW DELHI : A bill seeking to make divorce easier in case of "irretrievable breakdown of marriage" was introduced in the Rajya Sabha on Wednesday. The Marriage Laws (Amendment) Bill, moved by law minister M Veerappa Moily, aims at mitigating hardships by allowing divorce in cases of complete failure of marriages. At present, the petition for a divorce on the ground of mutual consent could be presented by the spouses together before the court under the Hindu Marriage Act 1955 and the Special Marriage Act 1954. While both parties have to move a motion jointly before the court between six and 18 months of the original petition, it has been observed in several cases that one of them does not turn up. This leaves parties desirous of obtaining decree of divorce hapless and remediless. In order to mitigate such hardships and to allow divorce in cases of complete failure of such marriages, the bill seeks to amend the Hindu Marriage Act and the Special Marriage Act. The condition of moving the motion before the court subsequent to the first petition would be done away with, it said. However, in case the wife happens to be the respondent to the petition, she is entitled to oppose it on the ground that the dissolution of marriage would result in grave financial hardship to her. Similarly, a provision has been made to restrict grant of divorce on the ground of irretrievable breakdown of marriage if the court is satisfied that adequate provision for maintenance of children has not been made. The amendment bill has been prepared on the recommendations of the Law Commission as well as the Supreme Court. The clause of irretrievable breakdown of marriage will be in addition to the existing grounds for divorce.

ARTICLE 3 :
Women can file for divorce anywhere
CHENNAI : In a crucial ruling that is sure to cheer up women fighting divorce cases with husbands residing in a foreign country, the Madras high court has said that the family court inIndia had jurisdiction to try matrimonial litigation even if the husband is a citizen of a foreign country and not an ordinary resident of India. A division bench comprising Justice Elipe Dharma Rao and Justice KK Sasidharan pointed out that the amended Section 19 of the Hindu Marriage Act extended to outside India. "The fact that the husband is residing outside the territory does not prevent the wife from applying before the local designated court to redress her grievances," the bench said.

The judges were passing orders on a case involving film actor R Sukanya and her husband R Sridharan, who is an American citizen. The two got married in April 2002 as per Hindu rites and custom at the Balaji Temple in New Jersey in the US. After nearly a year she returned to India, started to act in films, and also filed a divorce petition in 2004. As her husband did not attend the proceedings, the family court granted her divorce ex parte. On representation from her husband Sridharan, later the family court reversed its order. He also filed a petition in the high court to restrain the family court from hearing the case on the ground that the court in India had no jurisdiction to take up the matter involving American citizens. Dismissing his claims, the judges said that when the marriage was solemnised under the Hindu law, the proceedings for divorce also has to be made under the same Act. Referring to the amended Section 19 of the Act, the judges said that with effect from December 23, 2003, the wife is now entitled to file a matrimonial petition before a district court in whose territorial jurisdiction she is residing. The judges rejected Sridharan's claims of domicile, and said, "when the marriage was solemnised under the Hindu law, the proceedings for divorce has also to be made under the said Act. He cannot take any exception to the proceedings in India under the provisions of the Hindu Marriage Act merely on account of his US citizenship or domicile." Explaining the rationale behind the amendment, the judges said the original section was causing serious prejudice to women as it was not possible for them to initiate proceedings before the court in whose jurisdiction they are residing. "Because of the rigid provision, women were compelled to approach the court in whose jurisdiction the marriage was solemnised or the husband resides or the parties to the marriage last resided together. The jurisdiction clause as it stood originally was really unfair to women," the judges said and directed the family court to go ahead with the hearing of the actor's case and conclude it within two months.

ARTICLE 4 :
Living separately does not guarantee divorce
NEW DELHI : It may be common in the matrimonial parlance that a spouse has ``deserted'' the other partner, but proving the serious charge of ``desertion'' to seek divorce is not a child's play. merely because a spouse lives separately for a long time does not guarantee divorce. it requires much more to get a decree of divorce. Can a husband seek divorce on the sole ground that his wife had been living separately for a reasonable time? or, for that matter, can the wife also resort to divorce on the ground that her husband had been living separately, thus causing cruelty to her? In one of the rare judgments on the sole issue of ``desertion'', the supreme court (justice d p mohapatra and justice doraiswamy raju) has explained that its meaning must be understood in the matrimonial parlance. section 13(1)(ib) of the hindu marriage act, 1955, deals with divorce. it says: ``any marriage solemnized, whether before or after the commencement of this act, may, on a petition by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has

deserted him/her for a continuous period of not less than two years. but this period must be immediately preceding the presentation of the petition for divorce.'' The provision has an explanation saying: ``the expression `desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party, and its grammatical variations and cognate expressions shall be construed accordingly''. Thus, it is difficult to give a comprehensive definition of the term `desertion' but the essential ingredients of this offence are : first, the factum of separation; second, the intention to bring cohabitation permanently to an end which is also called ``animus deserandi''; and third, the element of permanence which is a prime condition and requires that both these essential ingredients should continue during the entire statutory period of two years. In other words, break in this period can demolish the allegation of desertion. the charge can also be negated by a contesting party if she or he is able to demonstrate that his or her leaving the house was of a temporary nature in order to lodge a protest. The act has widened the definition of desertion to include ``willful neglect'' of the petitioner spouse by the deserter. desertion must also be without reasonable cause and without the consent or against the wish of the petitioner. it is clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner spouse. therefore, for the offence of desertion, two essential conditions must exist: the factum of separation and the intention to end matrimonial relationship. Similarly, two elements are needed as far as the deserted spouse is concerned. first, the absence of his or her consent, and, second, absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention. the petitioner spouse is under an obligation to prove the two ingredients in order to get a decree of divorce. The cause of desertion is equally important. if a spouse creates an unbearable situation for the other leading to his or her leaving the matrimonial home, it would not amount to desertion without consent. the doctrine of ``constructive desertion'' says that the desertion is not to be tested by merely ascertaining which party left the matrimonial home first. if one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for driving the other out is guilty of desertion.

ARTICLE 5 :
Irretrievable breakdown is no ground for divorce: HC
NEW DELHI : Pointing out that "irretrievable breakdown of marriage'' is not yet a ground for divorce, the Delhi high court on Monday warned that whenever it is included as a ground, it ought to have adequate safegurads so as to "not send a message that divorce has now become a cakewalk''.

Justice Kailash Gambhir turned down the plea of a husband seeking seperation and suggested a few points to be kept in mind while incorporating this specific ground as a reason for divorce in the Hindu Marriage Act. "It will be important to bring forth that HC in the exercise of its powers can't grant divorce on the ground of irretrievable breakdown of marriage as it is not yet a ground in Hindu Marriage Act,'' HC noted while dealing with a suit seeking to challenge refusal to grant divorce to a husband by a lower court. In his plea the husband claimed that his wife and his mother-in-law caused great mental agony to him as both cooked their own food when his mother-in-law visited them. He said the mother-in-law also "created scenes'' that made him feel depressed and neglected. Listing the points HC said firstly, there should be a minimum period before which such a ground can be invoked and when it does, grant of divorce should be subject to the wife getting adequate money. Moreover, HC said, in case a fueding couple has children, their maintenance, education and upbringing, visitation rights ought to be decided during the divorce hearing itself. Dealing with the case at hand, HC noted that the allegations of cruelty levelled by the husband against her wife and in-laws "are vague, indefinite, unspecific and uncertain''. It added that without spelling any specific acts of cruelty either on the part of the wife or her mother it would be difficult "to prove mental cruelty''. "The relationship between husband and wife is one of the most delicate emotional bonds and needs constant nurturing, tolerance and understanding,'' HC noted saying even though "divorce on the ground of irretrievable breakdown of marriage might be contrary to common peception and the idea of marriage being a holy union of seven births. But in the bid to preserve the unworkable marriage which has long ceased to be alive is bound to be a source of greater misery for the parties than divorce itself.''

ARTICLE 6 :
Government to consider making it easier to get divorce
NEW DELHI : Sparring couples may now have a way out of their misery without having to go through the blame game. The Cabinet on Thursday is expected to consider a proposal to amend matrimonial laws for making "irretrievable breakdown of marriage" a ground for divorce. The proposal moved by law ministry suggests amendment to the Hindu Marriage Act 1955 and Special Marriage Act 1954 to add the new basis for granting divorce. Breakdown of marriage is currently not a ground for divorce despite several Supreme Court verdicts favoring it and the Law Commission recommending that it be included in the provision of the law. The amendment will enable couples to get divorce if one of them refuses to live with the other and will not work towards reconciliation, and the court is convinced that there is no hope of the two leading a normal matrimonial life.

The legal fraternity seems to be split over the proposed amendment. Some experts feel that growing individuality in society has contributed to an increasing number of cases ending at the divorce court with both parties dishing out dirty laundry. The amendment would make parting of ways less bitter. But several other experts warned of pitfalls in the proposed law. Eminent lawyer Kamini Jaiswal felt the amendment may not be a "bad idea" for urban women wanting to opt out of a relationship, but it may adversely impact rural women who have few options. "I feel there should be a comprehensive look at all laws relating to maintenance and alimony instead of a piecemeal look at one amendment," she added. Kirti Singh, former Law Commission member described the amendment as "disastrous" if it came without adequate safeguards. "The amendment should only be brought when women are given adequate share in household assets and maintenance. Most women get a pittance from the courts and most do not want to get out of a marriage only because there is nothing to sustain them outside it," she said, adding that this would only provide relief to men. According to the existing Hindu Marriage Act, 1955, divorce can be granted on three grounds -matrimonial fault, divorce by mutual consent and frustration due to specified circumstances. According to the first ground, marriage can be dissolved when either spouse has committed a matrimonial offence. Under this provision, it is necessary to have a guilty and an innocent party in matrimonial dispute and only the innocent party can seek divorce. Divorce on mutual consent is based on the fact that since two persons can marry by their free will, they should also be allowed to move out of their relationship if both agree to do so. Under "frustration by reason of specified circumstances", divorce can be granted to a person whose spouse has met with "civil death" -- disappeared without a trace for at least seven years -- or renounced the world. The law commission in its report points out that the ground of matrimonial fault is not always sufficient for divorce and may cause injustice in disputes where the marriage cannot work although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to reveal it.

CASE LAW 1 :
Naveen Kohli vs Neelu Kohli
Bench: B Agrawal, A Mathur, D Bhandari CASE NO.: Appeal (civil) 812 of 2004 PETITIONER:

Naveen Kohli RESPONDENT: Neelu Kohli DATE OF JUDGMENT: 21/03/2006 BENCH: B.N. AGRAWAL,A.K. MATHUR & DALVEER BHANDARI JUDGMENT Dalveer Bhandari This appeal is directed against the judgment of the Allahabad High Court dated 07.07.2003 passed by the Division Bench in First Appeal No.323 of 2003. The appellant and the respondent are husband and wife. The appellant has filed a petition under the Hindu Marriage Act, 1955 for divorce. The Family Court after comprehensively dealing with the matter ordered cancellation of marriage between the parties under Section 13 of the Hindu Marriage Act which was solemnized on 20.11.1975 and directed the appellant to pay Rs.5 lacs as her livelihood allowance. The appellant deposited the amount as directed. The respondent aggrieved by the said judgment preferred First Appeal before the Division Bench of the Allahabad High Court. After hearing the parties the appeal was allowed and the decree passed by the Family Court, Kanpur City seeking divorce and annulment of the marriage was dismissed. According to the High Court, the Trial Court had not properly appreciated and evaluated the evidence on record. According to the High Court, the appellant had been living with one Shivangi. As per the High Court, the fact that on Trial Court's directions the appellant deposited the sum of Rs.5,00,000/within two days after the judgment which demonstrated that the appellant was financially well off. The Division Bench of the High Court held that actions of the appellant amounted to misconduct, uncondonable for the purpose of Section 13(1)(a) of the Hindu Marriage Act. The appeal was allowed and the Trial Court judgment has been set aside. The suit filed by the appellant seeking a decree of divorce was also dismissed. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to the 1976 amendment in the Hindu Marriage Act, 1955 cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By 1976 Amendment, the Cruelty was made ground for divorce. The words which have been incorporated are "as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". Therefore, it is not necessary for a party claiming divorce to prove that the cruelty treatment is of such a nature as to cause an apprehension reasonable apprehension that it will be harmful or injurious for him or her to live with the other party.

D. Tolstoy in his celebrate book "The Law and Practice of Divorce and Matrimonial Causes" (Sixth Edition, p. 61) defined cruelty in these words: "Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger." In Cooper vs. Cooper [(1950) WN 200 (HL)], it was observed as under: "It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival." Lord Denning, L.J. in Kaslefsky v. Kaslefsky [(1950) 2 All ER 398, 403] observed as under: "If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled." "In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth [(1966) 1 All ER 524, 536], the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, "the case like any civil case, may be proved by a preponderance of probability". The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subject to mental cruelty due to conduct of the other." In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case." In Sandhya Rani vs. Kalyanram Narayanan reported in (1994) Supp. 2 SCC 588, this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court granted the decree of divorce. In the case of Chandrakala Menon vs. Vipin Menon reported in (1993) 2 SCC 6, the parties had been living separately for so many years. This Court came to the conclusion that there is no scope of settlement between them because, according to the observation of this Court, the marriage has irretrievably broken down and there is no chance of their coming together. This Court granted decree of divorce.

In the case of Kanchan Devi vs. Promod Kumar Mittal reported in (1996) 8 SCC 90, the parties were living separately for more than 10 years and the Court came to the conclusion that the marriage between the parties had to be irretrievably broken down and there was no possibility of reconciliation and therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce. In Swati Verma vs. Rajan Verma reported in (2004) 1 SCC 123, a large number of criminal cases had been filed by the petitioner against the respondent. This Court observed that the marriage between the parties had broken down irretrievably with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, the Court allowed the application for divorce by mutual consent filed before it under Section 13-B of the Hindu Marriage Act and declared the marriage dissolved and granted decree of divorce by mutual consent. In Prakash Chand Sharma vs. Vimlesh [1995 Supp (4) SCC 642], the wife expressed her will to go and live with the husband notwithstanding the presence of the other woman but the husband was not in a position to agree presumably because he has changed his position by remarriage. Be that as it may, a reconciliation was not possible. In V. Bhagat v. D. Bhagat (supra), this Court while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case, held that the allegations of adultery against the wife were not proved thereby vindicating her honour and character. This Court while exploring the other alternative observed that the divorce petition has been pending for more than 8 years and a good part of the lives of both the parties has been consumed in this litigation and yet, the end is not in sight and that the allegations made against each other in the petition and the counter by the parties will go to show that living together is out of question and rapprochement is not in the realm of possibility. This Court also observed in the concluding part of the judgment that: "Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extra- ordinary features to warrant grant of divorce on the basis of pleading (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluable mess, when the Court finds it in the interest of both parties." It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. The Court dealing with the petition for divorce on the ground of cruelty has to

bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent. In Durga P.Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353, this Court further observed that Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. In Lalitha v. Manickswamy, I (2001) DMC 679 SC that the had cautioned in that case that unusual step of granting the divorce was being taken only to clear up the insoluble mess when the Court finds it in the interests of both the parties. Irretrievable Breakdown of Marriage Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955. The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these word: "The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has

for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In the Report it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bounds which are of the essence of marriage have disappeared. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after

obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life. Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps. The appeal is accordingly disposed of. In the facts and circumstances of the case we direct the parties to bear their own costs.

CASE LAW 2 :
Dr. A.Rekharani, D/O. Rangan vs K.C.Prabhu
IN THE HIGH COURT OF KERALA AT ERNAKULAM Mat Appeal No. 87 of 2007 1. DR. A.REKHARANI, D/O. RANGAN, ... Petitioner Vs 1. K.C.PRABHU, S/O. K.CHANDRASEKHARAN, ... Respondent For Petitioner :SRI.R.SUDHIR For Respondent :SRI.D.SAJEEV The Hon'ble MR. Justice KURIAN JOSEPH The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :04/07/2007 ORDER KURIAN JOSEPH & T.R.RAMACHANDRAN NAIR, JJ. Mat.Appeal No.87 of 2007

Dated 4th July, 2007. JUDGMENT Kurian Joseph, J. Whether a power of attorney holder is entitled to present a petition for dissolution of marriage by a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 is the interesting question arising for consideration in this case. The marriage between the appellant and the respondent was duly solemnized on 29.10.2001. After three years, on the grounds of illicit relationship with another person, and cruelty, the appellant filed O.P.(HMA) No.1470/04 before the Family Court, Thiruvananthapuram (later transferred to the Family Court, Nedumangad) seeking a decree of divorce under Section 13(1)(i) and (ia) of the Hindu Marriage Act. In the meanwhile, the appellant left for Gulf. However, she executed a power of attorney, appointing her father as the power of attorney holder to prosecute the case before the Family Court. According Mat.Appeal No.87/07 2 to the appellant, O.P.(HMA) No.1470/04 was got dismissed as not pressed on 17.12.2005 and on the same day, a joint petition for dissolution of marriage by mutual consent was filed under Section 13B of the Act. The appellant was represented through the power of attorney holder and the respondent appeared in person. The Family Court took the statements of the appellant's father, the donee of power of attorney, and the respondent-husband on the same day and by order dated 20.12.2005, a decree was passed dissolving the marriage by a decree of divorce by mutual consent. At the risk of redundancy of the factual matrix, in order to appreciate the stand taken by the Family Court. According to the appellant-wife, she met the respondent on several occasions at Thiruvananthapuram in the meanwhile and she has not given consent for a divorce. It is also contended that the procedural requirements have not been satisfied. Hence the appeal. Section 13B of the Hindu Marriage Act, 1955 reads as follows :Divorce by mutual consent.--(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they 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. (2) 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, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

Whether such a petition can be presented through the power of attorney holder of the party to a marriage and whether the court can enter a satisfaction regarding the areas required for a decree of divorce by mutual consent is the further question to be considered. The extracted portions from the judgment under appeal would show that the power of attorney holder of the appellant wife has deposed regarding the emotional Mat.Appeal No.87/07 7 incompatibility of temperaments between the wife and the husband. The power of attorney holder has also further deposed that the wife and husband have decided to dissolve their marriage by mutual consent and that the decision is not vitiated by fraud, collusion, undue influence or misrepresentation. Still further, it is deposed that the marital tie between the wife and husband is practically and emotionally dead and that there is no chance for union. It needs no further discussion to hold that those are matters requiring personal knowledge and in such matters, the evidence cannot be tendered through the power of attorney holder. It is significant to note that in this case the wife herself has stated in the appeal that in the meanwhile the husband and wife met together on many occasions. If that be so, certainly the court lacked jurisdiction to grant the decree as the pre-conditions are not satisfied. Not only that, under Section 13B of the Act, a petition for dissolution of marriage by a decree of divorce by mutual consent is to be presented by the parties to the marriage and not through the power of attorney holder. They should satisfy the court that as on the date of presentation of the case that they had not been living together as husband and wife for more than one year, that they have not been able to live Mat.Appeal No.87/07 8 together and that they have mutually agreed for the dissolution. If after presentation of the petition, during the lie over period the parties have met and lived as husband wife, they are not entitled to the decree for dissolution. The court on motion after the lie over period has to satisfy that the parties had not been living together as husband and wife, at least for one year prior to the presentation of the petition, they are not able to so live together even after the presentation of the petition, and that they have not actually so lived during the lie over period either. The court should also satisfy that the mutuality on consent persisted in both the parties during the lie over period. If one party has change of heart or second thought in the meanwhile, the court has no jurisdiction to grant the decree for dissolution. The endeavour of the court should be as far as possible to sustain and nurture the institution of marriage. The approach made by the Family Court in the instant case is patently erroneous and it is casual too. The inquiry by the Family Court should be with the parties to the marriage, regarding the essential ingredient for a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act. In the result, the judgment in O.P.(HMA) No.2439/05 on Mat.Appeal No.87/07 9 the file of the Family Court, Nedumangad is set aside and the appeal is allowed.

CASE LAW 3 :

Shri Deepak Johri vs Smt. Kumkum Johri

IN THE HIGH COURT OF DELHI AT NEW DELHI MAT APP NO. 22/2007 Judgment reserved on: 10.1.2008 01.07.2008 Judgment delivered on: 1.7.,2008 Shri Deepak Johri ...... Appellant Through: Mr. Dinkar Singh,Adv. versus Smt. Kumkum Johri ..... Respondents Through: Mr. M.S.Mishra,Adv and Mr. A.K. Tripathi, Adv. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR By way of the present appeal, the appellant seeks to challenge the judgment dated 2.12.2006 passed by Ms. Anju Bajaj Chandna, learned Additional District Judge, Delhi, thereby dismissing the divorce petition filed by the appellant under Section 13(1) (ia) and (ib) of the Hindu Marriage Act. The brief facts of the case relevant for deciding the present appeal inter-alia are that the marriage between the parties was solemnized on 4.12.1980 in Delhi according to Hindu rites and ceremonies. After their marriage the party cohabited as husband and wife till 1981. As per the appellant the respondent had left the matrimonial home on 9.7.81 without any reasonable excuse and all efforts made by the appellant to bring back the respondent went in vein. That on 2.11.1981, a male child was born out of the wedlock. The appellant had even deputed his maternal uncle and Sh. Shiv Kumar Mathur, through whom the said marriage was arranged, to bring back the respondent to the matrimonial home but they were not successful in their efforts. The respondent had served legal notice dated 21.04.1982 making request to the appellant to take her back. The respondent had filed a petition under Section 9 of the Hindu Marriage Act, seeking restitution of conjugal rights and vide order dated 29.12.82, consent decree was passed by the Court of Ms. Usha Mehra, the then Additional District Judge, Delhi. As per the said consent decree the appellant had agreed to go to the house of the respondent to bring her along with the child on 31.10.82 at 11 A.M. As per the appellant he went to the house of the respondent along with his two relatives and Advocate Mr. S.N. Mittal to bring the

respondent back to her matrimonial home but the respondent refused to join the matrimonial home. On the refusal of the respondent to join the company of the appellant, the appellant was compelled to file a petition seeking dissolution of marriage by decree of divorce under Section 13(1) (a) and (b) of the Hindu Marriage Act. The said petition filed by the appellant was dismissed by the Court of Shri R.C. Jain, the then Additional District Judge, Tis Hazari, Delhi on 28.1.1987. Separate petition under Section 125 Cr.P.C. seeking grant of maintenance was also filed by the respondent which was heard and finally disposed of by Shri S.K. Tandon, the then Metropolitan Magistrate, Delhi vide order dated 17.3.1987. The appellant had preferred an appeal against the said order and the said appeal was disposed of by the court of Shri Jaspal Singh, the then Additional District Judge vide order dated 17.3.1987. After some gap the appellant had filed a second divorce petition seeking dissolution of the marriage under Section 13 1(ia) and 1(ib) of the Hindu Marriage Act 1955, and the said petition was dismissed by the Court of Shri S.M. Chopra, the then Additional District Judge, Delhi vide order dated 14.5.1984. Challenging the said order dated 14.5.84 the appellant filed a Civil Revision before this Court and the said revision petition was dismissed vide order dated 3.7.1986 on the ground of non maintainability, the order being appealable under Section 28 of the Hindu Marriage Act. Without filing any appeal against the order dated 14.9.94 of the learned District Judge or challenging the order of dismissal passed in Civil Revision Petition No. 1040/94, the appellant had filed, yet, another divorce petition bearing HMA 79/2006 and the said petition was dismissed by the Court of Ms. Anju Bajaj Chandana vide order dated 2.12.2006 which order is under challenge in the present appeal. The chief contention raised by Shri Dinkar Singh counsel for the appellant is that the principle of res judicata cannot be made applicable to the ground of desertion, the same being a continuing offence. Elaborating his submission further counsel contended that vide earlier judgment dated 28.1.1987 finding by the court was given in respect of the desertion for a specific period of 9.7.81 till 10.8.83 and such a finding cannot come in the way of the appellant to seek a divorce on the same ground claiming desertion for another period of two years preceding the date of filing of the petition, the desertion being a continuous nature of matrimonial offence. Another contention raised by the counsel for the appellant is that marriage between the parties has been irretrievably broken down as there is a continuous separation between them for over a long period of 25 years. Counsel thus contended that matrimonial discord between the parties is beyond repair and practically the marital relationship between the two parties more or less has become a fiction and nothing can be achieved in continuation of such a dead marriage. Counsel thus claimed that the appellant is entitled for grant of decree of divorce, at least on the ground of desertion as envisaged under Section 13 1(i-b) of the Hindu Marriage Act. AIR 1957 SC 176 ? Bipin Chander Jaisingbhai Shah Vs. Prabhavati Refuting the said contentions, Mr. M.S. Mishra counsel for the respondent raised a preliminary objection on the very maintability of the 3rd divorce petition filed by the petitioner. Counsel sought to urge that earlier on the same grounds two divorce petitions filed by the petitioner agitating the same ground were dismissed on merits and thereafter the third divorce petition filed by the petitioner on the same very grounds was barred by the

principle of res judicata as envisaged under Section 11 of the C.PC and therefore, rightly the said petition was dismissed by Ms. Anju Bajaj Chandana, learned Additional District Judge, Delhi vide order dated 2.12.2006. Strengthening his arguments counsel further contended that the first petition was also filed on the ground of cruelty and desertion, which was heard and decided by the court of Shri R.C. Jain, and the same was dismissed vide order dated 28.1.1987 clearly holding that the appellant had failed to prove the ground of cruelty or desertion as claimed by him in his divorce petition. In the said judgment the court also observed that the appellant had failed to stick to the terms of compromise as agreed upon by him in the proceedings filed by the respondent under Section 9 of the Hindu Marriage Act. The said court also clearly observed that the appellant was guilty of willful conduct of not bringing back the respondent and the child, despite giving a consent to bring them back during the course of Section 9 HMA proceedings. The Court also observed that intention was on the part of the respondent to bring cohabitation permanently to an end. The conduct of the appellant was such that he was not really interested to resume cohabitation with the respondent, the court held. The said order of dismissal of the divorce petition attained finality as no appeal against the said order was preferred by the appellant. It is further submitted by the counsel for the respondent that after a lapse of about 10 years the appellant filed yet another divorce petition bearing no. HMA 600/93 on the same grounds and the said petition was also dismissed by the Court of Shri S.M. Chopra, the then Additional District Judge, Delhi and the said order also attained finality as the same was not challenged by the appellant by way of filing an appeal thereto. Without there being any change of circumstances, the appellant had the audacity to file three petitions on the same ground of desertion and cruelty and therefore, the submission of the counsel for the respondent is that the learned ADJ has rightly dismissed the third petition filed by the petitioner, the same being hit by the principles of res judicata. Counsel for the respondent further submitted that no fresh ground of desertion was raised by the appellant in his subsequent petitions and even if the ground of desertion is taken to be continuing offence, then the same can be raised only when a fresh cause of action arises between the parties. Counsel for the respondent also submitted that it was clearly observed by the Court of Shri R.C. Jain, that the appellant himself was guilty of creating circumstances for not bringing back his wife despite the consent decree passed by the Court of Ms. Usha Mehra, the then Additional District Judge, Delhi. Counsel for the respondent also took an exception to the stand taken by the appellant that the marriage between the party has broken down irretrievably or that the substratum of the marriage has become totally dead. Counsel for the respondent stated that the said ground of irretrievable break down of the marriage between the parties is not a ground of divorce under Hindu Marriage Act 1955 and therefore, no decree of divorce can be claimed on the said ground under the said Act. I have heard learned counsel for the parties at a considerable length and have perused the records. ?Desertion? was not a ground of divorce before the 1976 amendment in the Hindu Marriage Act, though the same was a ground for judicial separation and which ground continue to exist even after the amendment. In Alwar Vs. Sri Devi 2002 SC 88 AIR the Hon?ble Supreme Court has laid down two

essential ingredients constituting desertion which are (i) the factum of separation; (ii) the intention to bringing cohabitation permanently to an end; animus deserendi. ?Desertion? is a total repudiation of the marriage between the parties. It is the intentional abandonment of one spouse by the other without reasonable cause. So far the deserting spouse is concerned, two essential conditions must be there, namely, (i) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as deserted spouse is concerned (i) the absence of consent, and(2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home. To form the necessary intention aforesaid, no ground of physical or factual separation how long the same may be, would constitute ?desertion? unless a requisite ?animus desirendi? ie., intention to bring cohabitation permanently to an end also co-exists. Thus, mere desertion is not sufficient as there must be ?animus deserendi? so as to establish desertion. The Supreme Court in the case of Bipin Chandra Vs. Prabhavati, AIR 1957 SC 176 held that the offence of desertion commences when the fact of separation and the animus deserendi co-exist, but it is not necessary that they should commence at the same time. The de- facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. It is also a settled legal position that the desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, the desertion cannot be attributed to the spouse who was forced by the conduct of the other spouse to leave the home and live separately. The desertion is thus a matter of inference to be drawn from the facts and circumstances of each case. On the second issue raised by the appellant that the marriage between the parties has practically broken down irretrievably and therefore, such a marriage which has practically become dead should be directed to be dissolved. It is no doubt true that the Apex Court in plethora of cases has granted decree of divorce on the ground of irretrievable break down of marriage between the parties, but in all such cases the Apex Court found that there were sufficient incidents of cruelty due to which the matrimonial bonds between the parties were ruptured beyond repair and the parties were left with no feeling or emotion towards each other. Although not exhaustive but some of such incidents of causing mental cruelty have been spelled out by the Apex Court in a recent decision reported in (2007) 4 SCC 511 titled Samar Ghosh vs Jaya Ghosh, Para 101 of the same is reproduced as under:101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ?mental cruelty?. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.

CASE LAW 4 :
Shaveta Garg vs Intents And Purposes. C.R. No. 794 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh ... C.R. No. 794 of 2009 Date of decision: March 3,2009 Shaveta Garg ..Petitioner Versus Rajat Goyal ..Co-petitioner Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr.Akshay Bhan, Advocate for the Petitioner. Mr. Sameer Rathore, Advocate for Mr. Sumeet Goel, Advocate for the co-petitioner Rakesh Kumar Garg,J. By way of this revision petition, the petitioner has challenged the order dated 21.1.2009 passed by the District Judge, Chandigarh vide which the application moved by the petitioner for waiving/condoning the statutory period of six months for grant of mutual divorce as fixed under Section 13-B(2) of the Hindu Marriage Act, 1955 (for short the 'Act') has been declined. As per the averments made in the petition, the marriage between the parties took place on 4.12.2005 as per Hindu Rites and Ceremonies. Later

on due to indifference in thinking and different attitude, the parties could not adjust with each other and started living separately since 27.7.2006. Every sincere effort by the parties to abridge the gap yielded no results and the marriage exists only on papers and the same is factually and emotionally dead for all intents and purposes. The respondent-husband sought divorce by filing a petition under Section 13 of the Act. It has been further averred in the petition that during the pendency of the aforesaid petition owing to the good offices of relations and respectable, parties arrived at a mutual settlement to get the marriage dissolved under Section 13-B of the Act by mutual consent. This C.R. No. 794 of 2009 2 conscious decision was taken by the parties of their own free will and volition after thorough deliberations without any undue pressure and coercion from any quarters. The respondent-husband sought amendment in application for correcting the divorce petition into a petition for divorce by mutual consent. Both the parties filed a joint petition under Section 13-B of the Act for dissolution of marriage on 16.12.2008 before the District Judge, Chandigarh. Statements of the parties were recorded on 20.12.2008 wherein they stated that they could not live together due to different temperaments and have been residing separately since 27.7.2006. They also stated that their marriage has broken and they have decided to get it dissolved by way of mutual consent and they are making the statements without any influence or pressure. The parties also moved an application for condonation/ waiving of statutory period of six months as provided under Section 13-B(2) of the Act pleading that they are young and have taken a conscious decision of divorce after thorough deliberations. It was also pleadd that the respondent- husband has undertaken to pay Rs. 1.40 Crores to the petitioner-wife and they are of the age group of 29 years and 28 years and no purpose will be served to keep the matter pending for another six months and it was submitted that since they are of marriageable age, their marriage be dissolved by condoning the statutory period of six months. The District Judge, Chandigarh vide impugned order dated 21.1.2009 dismissed the aforesaid application holding that statutory period of six months cannot be waived in view of the judgment of this Court in Charanjit Singh Mann Versus Neelam Mann AIR 2006 Punjab and Haryana 201. Challenging the impugned order, learned counsel for the petitioner has vehemently argued that the trial Court has failed to consider that both the parties are living separately since 27.7.2006 and are well educated and mature enough to understand what is good for them. Both the parties are of marriageable age and no purpose will be served to adjourn the proceedings for another six months. Learned counsel for the petitioner has further argued that the court below has failed to consider the fact that statutory period of six months C.R. No. 794 of 2009 3 has been waived off in various Single Bench as well as Division Bench Judgments passed by this Court and the judgment in Charanjit Singh Mann's case (supra) has been wrongly relied upon by the court below as the operation of the said judgment has been stayed by the Hon'ble Supreme Court in Special Leave to Appeal(Civil) No. 9346 of 2006 dated 25.1.2007. Learned counsel for the petitioner has also relied upon a Division Bench judgment of this court in the case of Jawan Versus Mewa Singh 2001(3) RCR (Civil) 343 to contend that the moment, operation of judgment is stayed, the ratio of law as laid

down by the judgment of the Division Bench cited in Charanjit Singh Mann's case(supra) became nonest. In the end, earned counsel has argued that the impugned order is liable to be set aside. Learned counsel has further prayed that the revision petition be allowed and the impugned order be set aside and further direction be issued to the trial Court to proceed with the matter after waiving of the statutory period of six months as fixed under Section 13-B(2) of the Act. I have also heard learned counsel for the co-petitioner-husband who has admitted that there was no coercion, intimidation or, undue influence on C.R. No. 794 of 2009 4 the parties for getting the divorce. He has also stated that since 27.7.2006, the parties are living separately and the co-petitioner/ husband had filed a petition for divorce under Section 13 of the Hindu Marriage Act for divorce. Since the efforts made by the parties to reconciliation yielded no results, the parties have arrived at a mutual settlement to get the marriage dissolved under Section 13-B of the Act by mutual consent and the co-petitioner/ husband moved an application under Order 6 Rule 17 CPC for converting the petitioner of divorce under Section 13-B of the Act and moved joint petition for divorce by way of mutual consent on 16.12.2008 after taking conscious decision as both of them are very young and there is every possibility of rehabilitation of both the spouses in near future. In the end, learned counsel for the respondent has also prayed for waiving of the statutory period of six months and to dissolve the marriage by way of mutual consent. Apex Court observed that the purpose of this waiting period is to give an opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period, one of the parties may have a second thought and change the mind not to proceed with the petition and held that in a petition for divorce by way of mutual consent under Section 13-B of the Act a spouse can unilaterally withdraw the consent and the consent once given is not irrevocable. Relevant observations of the Honorable Supreme Court are as follows:- " From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorize the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period, one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap martial ties. They know that they have to take a further step to snap marital ties. Sub-Section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties...if the petition is not withdrawn in the meantime, the Court shall....pass a decree of divorce."What is significant in this provision is that there should also be mutual consent when they move the court with a C.R. No. 794 of 2009 6 request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the inquiry, the Court gets no jurisdiction to make a decree for divorce. If

the view is otherwise, the Court could make an inquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent. Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13- B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard". The Honorable Supreme Court in Anjana Kishore's case(supra) observed as under:"In view of the developments which have taken place during the pendency of proceedings in this Court, we decline to transfer the case from family court at Bandra, Mumbai to the family court at Saharanpur. We, however, direct that as agreed to by learned counsel for the parties, a joint petition shall be filed by the parties before the family court at Bandra, Mumbai for grant of divorce by mutual consent. Terms of compromise as filed before us shall also accompany the joint petition. An application for curtailment of time for grant of divorce shall also be filed along with the joint petition. On such application being moved, the family court may, dispensing with the need of waiting for six months, which is required otherwise by sub-section (2) of section 13-B of Hindu Marriage Act, 1955, pass final order on the petition within such time as it may deem fit. C.R. No. 794 of 2009 8, This direction we are making under Article 142 of Constitution, as looking at the facts and cir circumstances of the case emerging from pleadings of the need of making such a direction to do complete justice in the case. The parties shall present themselves before the learned Presiding Officer, family court at Bandra, Mumbai on 17.9.2001 when the learned Presiding Judge shall take further appropriate steps."

CASE LAW 5 :
Vardi vs Narayanlal
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT: D.B. CIVIL MISC. APPEAL NO.2068/2007 (Smt. Vardhi Vs. Narayan Lal & Ors.) Date of Judgment : 16.03.2010 PRESENT

HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Sandeep Saruparia, for the appellant. Mr. Mahesh Joshi on behalf of Mr. Suresh Shrimali, for the respondent. BY THE COURT: (Per Honorable Mr.Vyas, J.) The appellant has filed this appeal under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 23.7.2007 passed by Judge, Family Court, Udaipur in Civil Misc. Case No.238/2003 whereby the Judge, Family Court dismissed the application filed by the appellant under Section 13 of the Hindu Marriage Act for seeking divorce. As per facts of the case an application under Section 13 of the Hindu Marriage Act was filed by the appellant Smt. Vardhi stating therein that she got married with the respondent 2 Naryan Lal nine years back and thereafter she was living with her husband and his family. It is alleged in the application that after sometime of marriage, the respondent was regularly harassing and beating the appellant and at last sent out from the house without any reasons. So many allegations were levelled by the appellant in the application filed under Section 13 of the Hindu Marriage Act with regard to cruelty and prayed that on the ground of cruelty and desertion, a divorce decree may be passed in her favor. Thereafter to prove the above issues from the side of appellant, three witnesses were produced before the Judge, Family Court namely AW-1 Vardhi - appellant herself, AW-2 Bhuri Lal, AW-3 Meghraj and from the side of respondent, statement of four witnesses were recorded as NAW-1 Narayan Lal respondent himself, NAW-2 Ramlal, NAW-3 Vagat Ram and NAW-4 Shankarji. After taking evidence oral and documentary from both the sides, the learned Family Court finally decided the 4 application filed by the appellant under Section 13 of the Hindu Marriage Act vide judgment dated 23.7.2007 whereby the application filed by the appellant for divorce was rejected. Against which this appeal has been filed by the appellant. Learned counsel for the appellant argued that the judgment rendered by the Family Court is wholly illegal and based on perverse finding because while passing the impugned order, the Court has neither looked into the record of the case nor considered the law applicable to the case. As per learned counsel for the appellant learned Family Court has committed a grave error in deciding issue No.1 on the ground of missing of the material facts in the pleading relating to the ground of cruelty. The finding of learned Family Court is also erroneous on the ground that the findings are contrary to the facts on record although specific dates with regard to cruelty is not pleaded but appellant pleaded that the respondent and his parent made physical violence on her and kicked her out from the house before eight years. Therefore, in presence of these pleadings, it cannot be said that no specific

date on which the respondent made physical violence and demand of dowry has not been mentioned by the appellant. With regard to issue No.2, it is submitted that appellant has proved the ground of desertion because in her statement by the appellant that she was kicked out from the 6 house by the respondent himself and parents five years back from the date of filing the application for divorce. But this aspect of the matter has not been considered properly. Therefore, the finding arrived at by learned trial Court with regard to issue No.2 is also perverse and illegal so also have no foundation to stand before eye of law. Learned trial Court has erroneously arrived at with the finding that all the efforts were made by the respondent for bringing the appellant in his house though she has pleaded that due to bad conduct and cruelty towards her, the appellant was living separately and has been deserted by the respondent himself. Learned counsel for the appellant finally argued that there is evidence on record to prove the ground of cruelty but finding arrived at by the trial Court is totally perverse and without any basis, therefore, the judgment impugned in this appeal deserves to be set aside. Likewise, for the ground of desertion, it is submitted that the appellant was deserted by the respondents and she was living separately from last five years from the date of filing application for divorce, because the respondent has deserted her, therefore, she is entitled for decree of divorce on both the grounds which is cruelty and desertion but learned trial Judge has failed to consider entire evidence in right prospects and illegally rejected the application 7 filed under Section 13 of the Hindu Marriage Act and refused to grant decree of divorce. We have considered the rival submissions made by both the parties and scanned the evidence on record. Upon perusal of the entire evidence, it emerges that an application under Section 13 of the Hindu Marriage Act was filed by the appellant on 2.1.2004, before the said date, an ex-parte decree upon application filed by the respondent under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was passed against the appellant because the appellant did not attend the Court even after service of notice upon the appellant. But she did not comply with the said decree and living separately inspite of the fact that a decree for restitution of conjugal right has already been passed by the Judge, Family Court. Therefore, in our opinion, learned trial Court has rightly arrived at with the finding that the respondent has not deserted the appellant. More so, he made his all efforts for living together but inspite of decree passed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, the appellant did not choose to live 10 with the respondent, therefore, there is no question to accept the application filed under Section 13 of the Hindu Marriage Act for divorce on the ground of desertion. The learned family Court has rightly considered the evidence on record for the purpose of deciding the issue of desertion. With regard to allegation of cruelty, it is admitted case of the appellant that before filing divorce petition, an FIR under Section 498-A and 406 I.P.C. was filed against the respondent in which after investigation, challan was filed and respondent faced trial and ultimately he was acquitted from the

charges levelled against him in the year 2005 but this fact of acquittal was not brought to the notice of the Court when affidavit was filed by the appellant herself and in the cross- examination, when this question was put to her, then too she did not accept the said fact and said that she had no knowledge with regard to acquittal. In the cross-examination, it is also stated by her that she had no knowledge with regard to order of restitution of conjugal rights. In this view of the matter, after appreciation of entire evidence and considering the fact of the decree granted in favor of the respondent under Section 9 of the Hindu Marriage Act for restitution of conjugal right and acquittal of the respondent in 11 the criminal case filed by the appellant, we are of the opinion that the learned Judge, Family Court has not committed any error while rejecting the application filed by the appellant for granting divorce under Section 13 of the Hindu Marriage Act. Therefore, there is no force in this appeal. Hence, this appeal is hereby dismissed.