IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 Mat.Appeal.No. 633 of 2008(A) ----------------------------- AGAINST THE ORDER DATED 26/07/2008 IN IA.2275/2008 IN OP.146/2008 of FAMILY COURT,THRISSUR .................... PETITIONER(S): APPELLANT/1ST RESPONDENT IN O.P ---------------------------------------------- M.KRISHNA PREETHA, AGED 29 YEARS, D/O. P.SIVASANKARAN, "KRISHNA" THIRUVAMBADI, NEAR RAILWAY GATE, POONKUNNAM P.O., THRISSUR. BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): PETITIONER AND 2ND RESPONDENT IN O.P. ---------------------------------------------------- 1. DR.JAYAN MOORKKANATT, AGED 36 YEARS, S/O. MOHANAN, KAVANAPILLIL HOUSE, P.O. ASHTAMISHIRA, THRISSUR, NOW RESIDING DR.JYAN MOORKKANATT, NO35, MAHAVEER REEGAL APPARTMENTS, BASAVANNA NAGAR,MAIN ROAD, HOODI CIRCLE, BANGALORE 500048 2. DR. P.SIVASANKARAN "KRISHNA", THIRUVAMBADI, NEAR RAILWAY GATE, POONKUNNAM P.O., THRISSUR. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON 22/02/2010 PASSED THE FOLLOWING: CR R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- Mat. Appeal No. 633 of 2008-A ------------------------------------------------- Dated this the 22nd day of February, 2010 JUDGMENT Basant,J. Can the waiting period after filing the joint petition for divorce under Sec.13B of the Hindu Marriage Act, Sec.10A of the Indian Divorce Act and Sec.28 of the Special Marriage Act be waived by the court suo motu or on the application of both parties? 2. This question arose for consideration in various petitions and we posted all such cases together for hearing. Sri. G. Shrikumar, Advocate, has rendered assistance as amicus curiae for the court. We have had the advantage of hearing Advocates M/s S. Subash Chand, , Sandhya Raju, M.R. Rajesh, R. Sunilkumar, Shoby K. Francis and others on the question. We are answering that question in this case. The finding on that question in this case will be followed in all Mat. Appeal No. 633/08 -: 2 :- other cases. 3. Sec.13B of the Hindu Marriage Act, Sec.10A of the Divorce Act and Sec.28 of the Special Marriage Act are all identically worded except in so far as it relates to the stipulation of a larger period of separate residence under Sec.10A of the Divorce Act. That distinction is of no consequence in so far as the question to be considered in this case, raised above, is concerned. 4. The concept of marriage being solemn, sacrosanct and indissoluble is deeply rooted in the Hindu and Christian thoughts and way of life. The concept of divorce was itself accepted and recognized in these systems of personal laws after a long period which witnessed slow evolution of the law. Divorces on the ground of contumacious fault of the spouses and on the ground of absence of unavoidable requirements/essentials for a healthy married life were recognized by law initially. But the voluntary dissolution of marriage at the option of the spouses was not accepted as a concept for a long period of time in many systems of personal laws. With the progressive development of the society and in its march towards modernism, marriage was looked upon more as a social institution entered into by the Mat. Appeal No. 633/08 -: 3 :- spouses voluntarily as an incident of the right to life and pursuit of happiness. The institution of marriage started to be reckoned and perceived as one of complementarity partnership, friendship, association, love, affection, caring and sharing etc. With that, the concept of marriage as an institution made in heaven over which spouses have no control started waning. With that came the further thought and idea of terminating the relationship of marriage by the spouses voluntarily by mutual consent. Many a battle had to be fought to get the altered concepts accepted by the society. The change/transformation of mind set was not ushered in one fine morning or with ease. At long last we find individuals, community, society at large, public opinion and legislators yielding to such a concept of marriage and its dissolution and slowly accepting the idea of divorce by mutual consent. Secular personal law as also the different personal laws were constrained to swim with the times and accept the concept of divorce by mutual consent on joint application of the spouses. 5. We shall extract the provisions of Sec.13B of the Hindu Marriage Act, Sec.10A of the Divorce Act and Sec.28 of the Special Marriage Act for easy reference. They read as follows: Mat. Appeal No. 633/08 -: 4 :- “13.B of the Hindu Marriage Act. 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, Mat. Appeal No. 633/08 -: 5 :- pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.” “10A of the Divorce Act. Dissolution of marriage by mutual consent.-- (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage 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 Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and 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 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 by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it Mat. Appeal No. 633/08 -: 6 :- thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.” “Sec.28 of the Special Marriage Act. Divorce by mutual consent.-- (1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the parties together 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 district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized Mat. Appeal No. 633/08 -: 7 :- under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.” (emphasis supplied) 6. The legislative scheme has to be understood first of all. We have already adverted to the winds of change in thought among the members of the polity relating to dissolution of marriage by mutual consent. With that background in mind the statutory provisions have to be understood. Subject to safeguards/conditions the concept of divorce by mutual consent on joint application of the spouses has been accepted by the legislature by these provisions. There is no dispute now before us that the following are the essential non-negotiable conditions precedent insisted by law: A. Solemnisation of marriage. B. Mutual agreement of the spouses that the marriage should be dissolved. C. Spouses must have been living separately for the specified period of one year/two years prior to the presentation of the application. D. Spouses have not been able to live together during this period. Mat. Appeal No. 633/08 -: 8 :- 7. On these essential pre-requisites, there is no dispute after detailed discussions at the Bar. We must mention that an attempt was made initially to contend that conditions A and B along with either C or D above alone can be reckoned to be the essential pre-conditions. That contention cannot obviously be accepted. Going by the plain language of the statutory provision with due regard to the rules of grammar and semantics as also the legislative objectives, such a contention is found to be unacceptable. As no counsel has pressed that contention after elaborate discussions at the Bar, we find it unnecessary to advert to that contention in any greater detail. 8. We now come to the identical sub-section (2) in the above statutory provisions. It demands that there must be a mandatory minimum waiting period of six months after the filing of the petition before court. The court can take up the petition for its decision only after such period of waiting. The first motion is the filing of the joint application for divorce on the basis of mutual consent. Please note that the law mandates that the petition can be filed only after pre-conditions A, B, C and D above are satisfied. Even such a couple, who have filed the application after satisfying conditions A, B, C and D, can get a Mat. Appeal No. 633/08 -: 9 :- decree for divorce by mutual consent only after sub-section (2) is complied with. The statutory purpose appears to be very clear and obvious. Pre-conditions A, B, C and D must simultaneously co-exist. The joint application must then be made. After making the application, the law wants the spouses to ponder over, consider, evaluate and contemplate the consequences of the journey on which they have embarked. The period of minimum six to maximum 18 months is the period of mandatory re- consideration, re-evaluation, re-assessment and contemplation prescribed by the legislature for the spouses to take the crucial decision. There is an underlying assumption that the dissolution of marriage even by mutual consent is too serious a matter to be left to the instant decision of even the most educated, competent and sober persons in the community. There is an assumption that such an important decision deserves to be thought over and slept over for a fairly long minimum period of time. The provisions in sub-section (2) reflect the attitude of the polity and their representative legislature to marriage, its solemnity and the need for serious and deep contemplation before the spouses take the final decision to terminate the marital tie even by mutual consent. This decision of moment affecting their lives as Mat. Appeal No. 633/08 -: 10 :- well as their close relatives and off springs, the legislature mandates, cannot be taken and confirmed by the parties and acted upon by a court without reasonable care, caution, consideration and contemplation. The legislature in its wisdom has hence mandated that such consideration must be there for a minimum period of six months after making the initial motion/application. The cautious approach prescribed by the legislature is part of the culture and civilization of the polity. Dissolution of marriage even by mutual consent, the legislature appears to have realised, is too important a decision affecting not only the spouses but the community as a whole that the parties must be compelled to duly contemplate the issue for a minimum prescribed period of time before final plunge is made. 9. To us, the legislative mandate appears to be loud, clear and eloquent. If conditions A, B, C and D above co-exist, the spouses can make the application under Sec.13B of the Hindu Marriage Act, Sec.10A of the Divorce Act or Sec.28 of the Special Marriage Act for divorce by mutual consent. Then, after filing such petition the spouses must sit back and contemplate. They must consider deeply and anxiously whether they should stick to their decision to seek divorce by mutual consent. If Mat. Appeal No. 633/08 -: 11 :- after six months, they find themselves steadfast and firm in their decision, they can make the second motion before court. The court will then, and then alone, accept and act upon the decision of the spouses. The court will not accept their decision earlier. Conditions A, B, C and D must co-exist before the application. After making the application, serious contemplation must be made which contemplation must be given for a period of at least six months. 10. Is the provisions of sub-section (2) mandatory or directory? If it were not mandatory and can be reckoned as only directory, certainly the courts can be said to have a discretion which discretion can be invoked to waive the same in appropriate cases. The approach that we have made indicated above leaves not a trace of doubt in our mind that the provision is mandatory. Go by the purpose sought to be achieved or go by the language employed by the legislature, the conclusion to us is inescapable that the provision is mandatory. The fact that the parties have been living separately for a longer period than the minimum prescribed under condition C above; that they, who are educated and competent, have taken an informed decision to seek divorce by mutual consent or that they have been fighting Mat. Appeal No. 633/08 -: 12 :- each other and litigating for a long period of time are all, according to us, irrelevant while considering the play of sub- section (2) as all that can only justify their initial decision and consequent application to get the marriage dissolved by mutual consent. Sub-section (2), according to us, mandates unambiguously that after the decision under sub-section (1) is taken and the petition is filed the spouses have to wait for a minimum period of six months in contemplation. The anxiety of the system, and the culture and civilization which the system represents, to avoid the trauma of a divorce if possible is reflected eminently in sub-section (2). We have no hesitation to agree that sub-section (2) is mandatory and not merely directory. 11. Even hard cases should not persuade a court to lay down bad law. The court cannot adopt an attitude in derogation of the legislative wisdom that a wise decision regarding dissolution of marriage by mutual consent can be taken by the parties only after they contemplate the pros and cons for a minimum period of six months after making the initial motion/application for divorce on the ground of mutual consent under sub-section (1). 12. There is one more angle from which the question has Mat. Appeal No. 633/08 -: 13 :- to be looked at. Sub-section (2) clearly suggests that if spouses or either spouse chooses not to make a subsequent motion after six months and within a period of 18 months, the petition lapses and shall meet the fate of dismissal. The consent for divorce by mutual consent must manifest when the application is made under sub-section (1) and it must continue till the second motion is made within the stipulated period - “after six months before the expiry of 18 months”. This implies and declares that spouses or either of them can withdraw the consent within the period of mandatory contemplation (six to 18 months). This means further that the law concedes to the parties the option and liberty, notwithstanding the fact that they have made the initial application, to withdraw the consent for dissolution of marriage together or unilaterally till the period of six months or 18 months as the case may be, has elapsed. If that period is dispensed with and waived it would virtually stultify and frustrate the statutory scheme of giving option to a party who has initially consented to a divorce to alter his/her stand and refuse to agree for dissolution by mutual consent. The very real option given by the legislature to a party who has made the application to withdraw consent will lose all its sheen and meaning if such period were Mat. Appeal No. 633/08 -: 14 :- waived and decree for dissolution by mutual consent is granted before the elapse of the period of 6 months. That cannot obviously be the law. 13. This would work out great prejudice and unnecessary delay, it is urged. How? We queried. Parties will have to wait unnecessarily for six months, it is argued. That waiting for six months cannot be described by a court to be unnecessary as that is the period fixed by the legislature in its wisdom to compel the parties to reflect and contemplate. How can the said minimum period of six months be held to be unnecessary by a court? This waiting for the period of six months cannot be stated to result in undeserved prejudice also. It may appear to them to be unnecessary and causing prejudice. But the legislative mandate is that six months waiting is not unnecessary; but essential and necessary for the spouses to realise themselves, to discover themselves and to confirm their initial decision after contemplation if they choose. By no stretch of imagination can such waiting be held to be unnecessary or causing prejudice. To describe or reckon the said period of waiting as unnecessary and causing prejudice is to simply question the wisdom of the legislature on a civilisational and cultural aspect – regarding Mat. Appeal No. 633/08 -: 15 :- solemnity of marriage and the need/option to dissolve such marriage by mutual consent when no other reason is shown to exist in law justifying such dissolution of the solemn institution of marriage. No court can commit the indiscretion of questioning the wisdom of the legislature, within the area of its legislative competence. 14. We hence have no hesitation whatsoever to agree, by ascertaining and appreciation of the legislative object and purpose as also by the fundamental analysis of the statutory provision which is expressed in plain language that the stipulations of sub-section (2) are mandatory and no court can waive the statutory period except the apex court which under Art.142 of the Constitution can act even beyond the ordinary law in order to achieve complete justice in the peculiar facts of a given case. 15. We shall now look at the precedents. We need only refer to the decisions. As we shall later explain, it does not appear to be necessary to us to delve deeper into these precedents in the light of the binding law declared by the Supreme Court subsequently. In the following decisions, the courts appear to have waived the waiting periods holding that Mat. Appeal No. 633/08 -: 16 :- the interests of justice demand such waiving and dispensing with the period of waiting. The following decisions of the Kerala High Court appear to be relevant on this aspect: 1. Sreelatha v. Deepthy Kumar (1998 (1) KLT 195 (DB)) 2. Dr. M.G. Viji v. P.T. Omana (1998 (2) KLJ 446 (DB)) 3. Manojakumari v Bhasi (1998 (2) KLT 858 (DB)) 4. Dr.P.B. Prasad v. Deepthi (1999 (2) KLJ 520 (Single Bench)) 5. Mary Mathew v. State of Kerala (2002 (1) KLT 98 (Single Bench)) We may incidentally note that the Division Benches referred above though they opined that the period six months can be dispensed with had no occasion to delve deeper into the question to decide whether the provisions are mandatory or directory or the scheme of the statutory provision. 16. We do further note that some other High Courts have also taken the view that the period of waiting can be waived in the interests of justice. Reference can be made to the following decisions: 1. K. Thiruvengadam & Another V. Nil (AIR 2008 Madras 76 (Single Bench)) 2. Girdhari Maheshwari v. Nil (AIR 2009 Rajasthan 38 (DB)) Mat. Appeal No. 633/08 -: 17 :- 3. Sudershan Ram Bhasin (AIR 2002 (1) HLR Punjab & Haryana 270 (Single Bench)) 4. Preetha Nair v. Gopkumar (AIR 2001 (2) HLR Madhya Pradesh 370 (Single Bench)) 5. In Re. Grandhi Venkata Chitti Abbai (AIR 1999 Andhra Pradesh 91 (Single Bench)) 6. Smt. Roopa Reddy v. Prabhakar Reddy (AIR 1994 Karnataka 12 (DB)) 7. Suresh Kumar Batra v. Varsha Batra (1994 (2) HLR P & H 510 (Single Bench) 8. Hanamappa Chetrappa Koppal & Another v. Nil (1991 (2) HLR Karnataka 211 (Single Bench) 9. Dr. Dhiran Harilal Garasia v. N. Mansu (AIR 1988 Gujarat 159 (Single Bench) 10. Jarnail Kaur v. Bant Singh (1987 (1) HLR P & H 75 (Single Bench) 11. K. Omprakash v. K. Nalini (AIR 1986 AP 167 (DB)) 17. The Kerala High Court, at least, in three decisions appears to have taken the view that such dispensing with the waiting period is not permissible and the spouses or either spouse shall have the option to withdraw the consent within the stipulated minimum period of six months. Those decisions are: 1. K.I. Mohanan v. Smt. Jeejabai (1986 KLJ 833 (DB)) 2. K.K. Anirudhan v. T. Prasanna Kumari (1989 (1) HLR Kerala 682 (Single Bench)) Mat. Appeal No. 633/08 -: 18 :- 3. Rekharani v. Prabhu (2007 (3) KLT 917 (DB)) 18. This view that the period of waiting cannot be waived, we find, has been taken by other High Courts also. We refer to three such decisions below: 1. Gautam Basu v. Nina Basu (1991 (2) HLR Calcutta 459 (DB)) 2. Mohinder Pal Kaur v. Gurmit Singh (2002 (1) HLR P & H 537 (Single Bench)) 3. Principal Judge, Family Court, Nagpur v. Nil (AIR 2009 Bombay 12 (DB)) 19. In the light of the conflicting views, we may have taken a decision to refer the question to the Full Bench under Sec.4 of the Kerala High Court Act. But we find that the decision of the Supreme Court in Anil Kumar Jain v. Maya Jain (2009 (12) SCALE 115) is available now accepting the above view reasoned by us to confirm that the period of waiting cannot be dispensed with. After considering the apparent conflict of views, the two Judge Bench of the Supreme Court expressed itself in the following words in paras-16,17 and 18: “16. Although, the decision rendered in Sureshta Devi (supra) was referred to in the decision rendered in Asokh Hurra's case (supra) and it was observed therein Mat. Appeal No. 633/08 -: 19 :- that the said decision possibly required reconsideration in an appropriate case, none of the other cases has dealt with the question which arose in Sureshta Devi's case (supra), namely, whether in a proceeding under Section 13-B of the Hindu Marriage Act, consent of the parties was required to subsist till a final decree was passed on the petition. In all the subsequent cases, the Supreme Court invoked its extraordinary powers under Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage-ties had completely broken and there was no possibility whatsoever of the spouses coming together again. In such a situation, this Court felt that it would be a travesty of justice to continue with the marriage ties. It may, however, be indicated that in some of the High Courts, which do