DHIREN HARILAL GARASIA DR Vs. MANSU ALIAS MINA CHAMANLAL DANGI

JUDGEMENT

(1.) * * * *

(2.) Section 13-B of the Hindu Marriage Act which provides for divorce by mutual consent reads as follows: Sec. 13-B. Divorce by mutual consent:

(3.) Sub-section (2) of sec. 13-13 of course provides that decree for divorce has to be passed after the expiry of six months from the date of presentation of the petition for divorce by mutual consent. The amendment is granted by this Court on 19-3-1987 and six months have still not elapsed from the date of the said amendment. But at the same time the original petition was filed on 9-3-1984 and more than two years have elapsed since then. The amendment may relate back to the date of the presentation of the original petition and therefore also it can be said that six months have elapsed and therefore there cannot he any objection in passing a decree for divorce. It is again a well-settled proposition of law that a statutory provision though in a mandatory form can yet be treated as direction in nature and there are weighty reasons v. warranting the reading of sec. 13-B clause (2) as directory. The Legislature has by enacting sec. 13-B of the Act liberalised the tendency of providing relief to parties on the basis of their mutual consent from their broken marriages. Th s relief is granted by bringing about a profound alteration in the concept of a Hindu marriage from that of a sacrament to a contract. By that alteration law has definitely set its face against forcible perpetuation of the status of matrimony between unwilling parties. The provision of the period of six months fixed by sec. 13-B(2) is not a Rule relating to the jurisdiction of the Courts to entertain a petition filed for divorce by consent. The question of jurisdiction is dealt with by sec. 13-B(1) which must be strictly complied with while sec. 13-B(2) is a part of mere procedure. It must therefore be interpreted as a handmaid of justice in order to advance and further the interests of justice and not as a technical Rule. It is pertinent to note that sec. 13-B(2) provides that decree has to be passed not earlier than six months and not later than 18 months from the date of presentation of the petition. If we take it that the provision contained in sec. 13-B(2) is mandatory then in a given case a Court may not be able to pass a decree for divorce by mutual consent if the period of 18 months has expired for some reasons beyond the control of the parties. In view of this I am inclined to say that the provision contained in sec. 13-B(2) is directory and not mandatory. At any rate this provision cannot come in the way of an appellate Court in passing a decree for divorce by mutual consent in a given case even before the expiry of six months from the date of the presentation of the petition. When a Court finds that it is not possible to arrive at a reconciliation between the parties and the parties are living apart for long and their wedlock has virtually become a deadlock it would be futile to wait for a period of six months. Chances of reunion have completely faded away in the present case and therefore I think that a decree for divorce by mutual consent should be passed immediately. I am fortified in this view of mine by a Division Bench judgment of the Andhra Pradesh High Court reported in K Omprakash v. K. Nalini AIR 1086 AP 167. I may at the same time add here a word of caution that simply because the provision of sec. 13 can be said to be directory it does not necessarily follow that in all cases the Court should pass a decree for divorce even before the expiry of six months. It will depend upon the facts of each case whether decree should be passed before the expiry of six months or the Court should wait for a period of six months or more. The Court will have to exercise its discretion judicially in considering whether decree for divorce by mutual consent should be passed in a particular case even before the expiry of the period of six months. Decree modified.