FAO No.M-30 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.M-30 of 2011 (O&M) Date of decision 13.10.2011 Seema Devi ......Appellant Versus Sunil Kumar ......Respondent CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK Present: Mr. Sushil Jain, Advocate for the appellant. Mr. P.R. Yadav, Advocate for the respondent. S.S. SARON, J. Seema Devi-appellant has filed the present appeal against the judgment and decree dated 29.10.2010 whereby the joint petition filed by the parties on 28.10.2010 under Section 13-B of the Hindu Marriage Act, 1955 (for short the ‘Act’) for dissolution of their marriage by a decree of divorce with mutual consent has been allowed. The parties to the petition filed a joint petition dated 27.10.2010 (Annexure P-1) which was filed on 28.10.2010 for dissolution of the marriage between them by a decree of divorce by mutual consent. The petition was supported by affidavits of Seema Devi (appellant) and Sunil Kumar (respondent). The learned Additional District Judge, Sonepat recorded the joint statement (Annexure P-2) of the parties on 28.10.2010. It was stated by the parties that their marriage was solemnized on 21.05.2005 at Sonepat. They had a son from the marriage. However, after their marriage they could not adjust in the company of each other due to their different temperaments, which resulted in separation between them. They were residing separately from each other since 16.02.2007 FAO No.M-30 of 2011 (O&M) -2- and there was no chance of their reconciliation. Therefore, they had decided to live separately from each other and dissolve their marriage by a decree of divorce by way of mutual consent. It is further recorded that petitioner No.2-Sunil Kumar had agreed that he would not claim the custody of the son of the parties from petitioner No.1-Seema Devi. Seema Devi (petitioner No.1) received Rs.2,00,000/- from Sunil Kumar before the Court and the remaining amount would be paid at the time of second motion. They had settled the dispute between them regarding dowry articles as well as permanent alimony etc. and Seema Devi was not to claim anything in future. The learned Additional District Judge, Sonepat after recording the statements of the parties on 28.10.2010, on the very next date i.e. 29.10.2010 accepted the petition and dissolved the marriage by way of a decree of divorce mutual consent. Aggrieved against the same, the appellant has filed the present appeal. Learned counsel for the appellant has contended that the learned Additional District Judge, Sonepat gravely erred in decreeing the petition without adjourning the case for the second motion on the expiry of the mandatory period of six months in terms of Section 13-B (2) of the Act. Besides, it is submitted that the balance amount Rs.2,00,000/- which was to be paid to the appellant-wife at the time of second motion has not been paid. Learned counsel for the appellant has submitted photostat copy of a cheque drawn on Bank of India by Jagdish Parshad father of respondent-Sunil Kumar which was given for an amount of Rs.4,00,000/- in favour of Rajiv Kumar Khatri, who was the Advocate for the respondent in the Court below. It is submitted that the balance amount was agreed to be paid at the time of second motion before the decree was to be passed which was not paid as the decree was passed at the time of first motion itself. It is further submitted on instructions from the appellant who is present in Court that now the appellant is not willing to give her consent for the second motion and she wants to live with the respondent. It is also stated that the appellant will return the amount of FAO No.M-30 of 2011 (O&M) -3- Rs.2,00,000/- which she had received at the time of recording of first motion before the Additional District Judge, Sonepat. In response, learned counsel for the respondent has submitted that the respondent is ready and willing to pay the balance amount of Rs.2,00,000/- for the grant of divorce. It is submitted that the order dated 29.10.2010 passed by the learned Additional District Judge, Sonepat was with the consent of the parties and therefore, the same is binding on the appellant. It is further submitted that the amount of Rs.2,00,000/- which the respondent has paid to the appellant may be retained by her towards her claim of maintenance as it was agreed that they have settled all claims regarding dowry articles as well as permanent alimony and appellant would not claim anything in future. Learned counsel for the appellant however, submits that he has taken the amount of Rs.2,00,000/- as part of agreement which was not honoured by paying the balance amount of Rs.2,00,000/- for the purposes of granting divorce by mutual consent. If the decree of divorce granted by the Court below is set aside, the agreement would not subsist. The appellant would therefore, refund the amount of Rs.2,00,000/- and the appellant would claim her maintenance in proceedings under Section 125 Cr.P.C. which are at the final stage and are pending for orders in the Court of Judicial Magistrate, First Class, Sonepat. We have given our thoughtful consideration to the matter. It may be noticed that the petition for grant of divorce by mutual consent in terms of Section 13-B of the Act was instituted on 28.10.2010. The learned Additional District Judge, Sonepat recorded the joint statement (Annexure P-2) of the parties on 28.10.2010. In the joint statement the appellant stated that she had received Rs.2,00,000/- from the respondent and that the remaining amount would be paid at the time of second motion. The learned Additional District Judge after recording their statement on 28.10.2010 adjourned the case for the very next day i.e. 29.10.2010. On 29.10.2010 the learned Additional District Judge accepted the FAO No.M-30 of 2011 (O&M) -4- petition and dissolved the marriage between the parties in terms of Section 13-B of the Act. It was mentioned that the parties have stated that since they were living separately from each other for the last three years, the statutory period of six months may be condoned and the petition be allowed. It may be noticed that Section 13-B (2) of the Act envisages that on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to 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 solemnized 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 decree of divorce. Therefore, the period of six months from the date of petition is mandatory and the Court can pass a decree only after a period of six months has lapsed from the presentation of the petition in terms of Section 13-B of the Act. A Division Bench of this Court in Charanjit Singh Mann versus Neelam Mann, (P&H) 2006(2) R.C.R. (Civil) 497, held in a case under Section 13-B of the Act that divorce by mutual consent cannot be granted before expiry of six months from the date of presentation of petition under Section 13-B and that the six months period is mandatory. The Court cannot waive the said period with the consent of the parties. Besides, the mandatory waiting period of six months will begin from the date of filing of the petition. In Anil Kumar Jain versus Maya Jain 2009(4) R.C.R. (Civil) 309, it was held by the Hon’ble Supreme Court that the High Court and the trial Court cannot pass the decree of divorce by mutual consent in terms of Section 13-B before the expiry of six months period prescribed under Section 13-B (2) of the Act. It was also observed that if after the filing of a petition, the wife withdraws her consent, a decree of divorce cannot be passed either by the Civil Court or by the High Court. Therefore, if one of the consenting parties withdraws its consent before passing of the decree a decree of divorce by mutual consent is FAO No.M-30 of 2011 (O&M) -5- not to be passed. In Gurpinder Kaur Sahsi versus Ravinder Singh Sahsi 2005(1) I.L.R. (Punjab) 509, it was held that the condonation of waiting period is not permissible and the waiting period under Section 13-B is mandatory with an object provided by the legislature. The Court cannot defeat the very object of the legislation by condoning the same. Therefore, the learned Additional District Judge, Sonepat gravely erred in condoning the period of six months waiting period by passing the decree of divorce by mutual consent on the very next day of its presentation. Besides, it did not take into account the statement of the appellant to the effect that the decree was to be passed on payment of balance amount of Rs.2,00,000/- at the time of second motion which was to be after six months of the date of the presentation of the petition on 28.10.2010. Therefore, we are of the view that the judgment and decree passed by the learned Additional Judge, Sonepat is unsustainable and is liable to be set aside. Besides, the appellant is liable to return the amount of Rs.2,00,000/- which she had taken in consequence of the passing of the decree of divorce by way of mutual consent. Accordingly, the appeal is accepted. The judgment and decree dated 29.10.2010 passed by the learned Additional District Judge, Sonepat are set aside and the marriage between the parties shall subsist. The appellant shall deposit the amount of Rs.2,00,000/- in the Court of learned District Judge, Sonepat within two months from the date of receipt of the copy of the order. (S.S. SARON) JUDGE 13.10.2011 (RAMESHWAR SINGH MALIK) Jyoti 1 JUDGE