BALIA, J. - (1.) THE appellants are aggrieved with the Order passed by the Additional District Judge No. l, Sri Ganganagar on December 8, 1992 by which the appellants joint application for a decree for divorce by declaring dissolution of their marriage under Sec. 13-B of the Hindu Marriage Act, 1955 (for short the Act' hereinafter) has been rejected.
(2.) THOUGH the appellants have impleaded the Additional District Judge No. l, Sri Ganganagar as sole party respondent, the name of the respondent is deleted at the request of the appellants, as a court passing a judicial order, is not a party to the litigation and ought not to have been impleaded as a party at all. From the order, it is apparent that a joint petition under Sec. 13b of the Act for dissolution of their marriage, which existed between the parties for over ten years was filed on May 18, 1992. First date was fixed after six months of filing of the petition. Thereafter the parties again moved a joint motion for passing the decree. On that motion the statements of parties were recorded. After making inquiry and hearing the parties, the court was satisfied that all the conditions necessary for passing a decree for divorce by declaring the marriage to be dissolved existed. Yet it has refused to pass the decree solely on the ground that petition has been filed after undue delay. The approach of the learned Additional District Judge, in any view, is not warranted. In the matrimonial cases, particularly for a relief which is based on a joint prayer of the parties no period of limitation for making such petition has been pre scribed. The court's power to pass a decree for dissolution of marriage are not happened by the law of limitation. Living separately for a period of one year or more furnishes a ground for seeking a declaration of dissolution of marriage but does not make it incumbent upon the parties to marriage to seek dissolution of marriage. The cause arises only when the parties decide to call it quits by agreeing that marriage should be dissolved. Until then marriage subsists and occasion for moving an application under sec. 13b of the Act does not arise. Thus mere living separate does not result in starting point of limitation for filing the petition if any. In this? connection difference in the Scheme of Sections 12, 13 and 13b of the Act may also be noticed. While for relief claimed under Sec. 12 for annulment of marriage or under Sec. 13 for dissolution of marriage, it is in the discretion of the court to grant a decree for annulment or divorce, as the case may be, and latches may be a ground for refusing relief. The same cannot be a ground for refusing relief under Sec. 13 of the Act. The provisions of Sec. 13b have been couched in mandatory form by using the phrase 'court shall. . . . pass a decree' against the use of word 'may' is Secs. 12 and 13 of the Act. Once condition for passing a decree for divorce by declaring dissolution of marriage as con templated under Sec. 13b exists, the court has to pass a decree of divorce and it is not left to its discretion. Apart from the aforesaid distinction of pharseology in Section 12 and 13 on the one hand and Sec. 13b on the other hand, to refuse the parties to marriage to depart, once it is established that living together has become incompatible, on the ground of delayed filing of petition would be against public policy. The policy behind dealing with all matrimonial disputes is that parties to marriage must be given sufficient opportunity and time to reconcile and save the marriage rather than to destroy it by rushing to court. Even after the parties approach the Court the Court is under a duty to make all endeavours to bring reconciliation between the parties before a decree for divorce or judicial separation is made. That is to say, it is a matter of public policy that parties must be given a long rope to iron out their difference and incompatibility before they are finally separated. Therefore, if the parties themselves choose to wait for a long time in the hope of possible reconciliation of saving the marriage and come to courts together as husband only after realising that it has become impossible to live and wife to refuse the relief merely on the ground of late approach to the court, would be frustrating the very purpose of giving a chance for survival of marriage.
(3.) SO also once it is established that living together as husband and wife has become incompatible and both the concerned parties are in agreement to serve bond and live independently with freedom to act henceforth, and law has. permitted this court to be adopted by introducing Sec. 13b, to refrain to pass a decree on the ground of delay will not only be contrary to statute but will also be unreasonable and cruel to compel the parties to live compulsorily under the shadow of matrimonial bond imparatively. The court below has found on an inquiry that all necessary ingredients for passing a decree of divorce on joint petition under Sec. 13b exist in the present case. The parties are entitled to a decree for divorce by declaring that their marriage is dissolved with effect from the date of the decree is passed. Accordingly, Act is allowed and appeal is allowed. The petition under Sec. 13b of the decree for divorce dissolving the marriage of appellants with effect from today i. e. August 5, 1993 is passed. . ;