C.R.No.8466 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.8466 of 2010 Date of decision: 5.1.2011 Pooja and another ….Petitioners Vs. District Judge, Jalandhar ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. P.S. Khurana, Advocate for the petitioners. Jaswant Singh, J Both the petitioners i.e wife and husband respectively have filed the present petition under Article 227 of the Constitution of India praying for quashing the impugned order dated 28.10.2010 (P.4) passed by learned District Judge, Jalandhar-respondent vide which the application filed by petitioner No.1-Pooja (wife) under Section 14 of the Hindu Marriage Act, 1955 (for short “Act of 1955”) for leave to file a petition for divorce before the expiration of period of one year from the date of marriage as well as petition under Section 13-B had been dismissed. Brief facts are that marriage of the petitioners was solemnized on 30.6.2010 as per hindu religious rites and ceremonies at Jalandhar. The marriage was cohabited between the parties as husband and wife at Zirakpur for a short span of only for four days and thereafter petitioner No.2-husband proceeded to Dubai. Due to incompatibility in temperaments and to avoid further deterioration of the situation both the parties decided to live separately from each other and in support thereof a written deed of C.R.No.8466 of 2010 #2# dissolution of marriage dated 11.9.2010 (P.1) was also executed at Jalandhar. Thereafter, a petition (P.3) under Section 13-B of the Act of 1955 for divorce by mutual consent was filed on 18.10.2010 i.e within a period of four months from the date of marriage. Petitioner No.1-wife filed an application (P.2) under Section 14 of the Act of 1955 for leave to file a petition for divorce before the expiration of period of one year from the date of marriage, which has been dismissed by relying upon the judgment of Hon'ble the Supreme Court in case of Manish Goel v. Rohini Goel 2010(2) RCR (Civil) 194. The main reasoning given by the learned District Judge is that in view of the laid down by Hon'ble Supreme Court in Manish Goel's case (supra), the parties must be residing separately for the last one year cannot be condoned by the family Court and it is a statutory requirement under Section 13-B of the Act of 1955 and the provisions of Section 14 of the Act of 1955 will not be applicable in the present case. It is further recorded that there is no exceptional hardship or depravity shown in the application and it is further recorded that the petition under Section 13- B of the Act of 1955 is not maintainable. Consequently, application as well as petition under Section 13-B were dismissed. Learned counsel submits that both the parties with their mutual consent have decided to dissolve the marriage and have executed a dissolution deed of marriage dated 11.9.2010 and since then there is no relationship between them as husband and the wife and the marriage has irretrievably been broken down and that there is no chance of reconciliation. A perusal of dissolution deed of marriage (P.1) clearly reveals that reconciliation between the parties is not possible and there is no chance of living them together and on the advice of their parents, relatives, friends C.R.No.8466 of 2010 #3# and with their own free consent and will, they have decided to dissolve their marriage on certain terms and conditions. It was also one of the conditions that both the parties shall be at liberty to re-marry anywhere according to his/her choice and none of the parties shall have any objection for the same. It is categorically mentioned under Clause 6 of the Deed (P.1) that “there is a custom in the brotherhood to execute such divorce” (emphasis supplied) In such a situation, Sub Section (2) of Section 29 of the Act of 1955 can be pressed into service and the same is reproduced as under: 29. Savings.-(1) xx xx (2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after the commencement of this Act. (3) & (4) xx xxx” The perusal of Sub Section (2) of Section 29 of the Act of 1955 makes it amply clear that where the dissolution of a hindu marriage is recognized by a custom, then the provisions of the Act of 1955 shall not affect such a right recognized by way of a custom. In the present case, the dissolution deed (P.1) is executed with the consent of both the parties and no one is objecting the same then in such a situation, the dissolution deed (P.1) can be taken into consideration at least for the limited purpose to ascertain the status of the parties at present and to arrive at a conclusion whether the circumstances warrant that the case is falling within the ambit of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. However, it is made clear that this Court is not deciding the issue as to whether any such custom for dissolution of marriage by brotherhood was/is prevalent in District Jalandhar or not and the same C.R.No.8466 of 2010 #4# will be decided in an appropriate case, when the occasion arises. In case of Manish Goel's case (supra), the point involved was different as to the present case as in that case parties filed a petition under Section 13-B (1) before the Family Court by way of mutual consent wherein the statements of the parties were recorded. Thereafter, the parties filed another application to waive the statutory period of six months in the second motion, however, the Court rejected the same by observing that it was not competent to waive the statutory period of six months under the Act of 1955 and such a waiver is permissible only under the direction of Hon'ble the Supreme Court. But in the present case, the application was filed under Section 14 of the Act of 1955 for grant of leave to the parties to file a petition under Section 13-B in view of the circumstances that period of one year has not expired since the date of marriage and such an application is permissible under proviso to Sub Section (1) of Section 14 itself and, therefore, the aforesaid case is distinguishable to the facts of the present case. Both the parties are educated and fully understand their respective welfare and the marriage has irretrievably been broken down and there is no chance of any reconciliation. No issue is born from the wedlock. Learned District Judge has wrongly come to the conclusion that the provisions of Section 14 of the Act of 1955 are not applicable to the facts of the present case rather the same are very much applicable. Section 14 of the Act of 1955 is reproduced hereunder: “14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the C.R.No.8466 of 2010 #5# date of the marriage. Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.” The perusal of proviso to Sub Section (1) of Section 14 as reproduced above amply makes it clear that the Court may allow a petition to be presented before the expiry of period of one year since the date of marriage if a case of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent is made out. Keeping in view the facts and situation of the case discussed hereinabove, I am of the opinion that this will be a case of exceptional hardship not only to petitioner No.1-wife but petitioner No.2-husband also in case the impugned order is not set aside and leave is not granted for filing the petition under Section 13-B of the Act of 1955. C.R.No.8466 of 2010 #6# Consequently, the impugned order dated 28.10.2010 (P.4) passed by learned District Judge, Jalandhar-respondent is set aside and the leave to file a petition under Section 13-B of the Act of 1955 is granted to the parties. Learned District Judge, Jalandhar is directed to proceed further in the matter as per law and the parties are directed to appear before the learned District Judge, Jalandhar on 28.2.2011. Petition stands allowed. January 05, 2011 ( JASWANT SINGH ) manoj JUDGE