1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO.2412 OF 2007 1. Miten s/o. Shyamsunder Mohota (Goidani), Age 26 years, Occup. Service, Residing at 3rd Floor, Shrinath Apartment, Borivali (West), Mumbai. 2. Neha w/o. Nitin Mohata (Goidani) Age 25 years, Occup. Physiotherapist Residing at c/o. Nareshmuar G. Maheshwari At and Post Amgaon, Tal. & Dist. Gondia Maharashtra. .. Petitioners. Versus Union of India .. Respondent Through Secretary of Legal and Company Affairs Ministry, New Delhi. Mr. U.P. Warunjikar for the petitioners. Ms. Poornima Advani with Mr. Mandar Goswami and Mr. R.A. Lokhande for the Union of India. List of Commentaries referred 1. Principles of Hindu Law by Mulla (Eighteenth Edition) 2. Dr. Paras Diwan on Hindu Law (Second Edition, Reprint 2003) 3. Hindu Marriage Act, 1995 by Sukh Dev Aggarwal (The Bright Law House Edition 2005) 4. Hindu Law and the Constitution by A.M. Bhattacharjee, Second Edition, Eastern Law House. 5. Principles of Statutory Interpretation by Justice G.P. Singh, Tenth Edition 2006 (Wadhwa Nagpur). 2 6. The Hindu Marriage Act, 1955 (Article by Mr. Paras Diwan published in International and Comparative Law Quarterly (Vol-6) (April, 1957) 7. Marriage and Divorce Law Reforms (Article by Mr. Paras Diwan, (1977) 2 SCC (Journal) 1. CORAM : SWATANTER KUMAR, C.J. & J.P. DEVADHAR, J. Date of Reserving the Judgment : 11 th March, 2008. Date of Pronouncing the Judgment: 27 th March, 2008. JUDGMENT (Per Swatanter Kumar, C.J.) Simple but a pertinent question of law challenging the constitutional validity of provisions of Section 13B of Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act') insofar as it relates to the pre-requisite period of separation for one year for institution of petition under section 13B of the Act, as mandatory and also on the ground that it is arbitrary and has no nexus to the object of the said provision, arises in this petition. 2. The petitioner No.1 was married to the petitioner No.2 on 29th April, 2007, according to Hindu rites and customs. The marriage between the parties was registered in accordance with law. After 3 marriage, the parties cohabited at Bombay till 2nd August, 2007 when matrimonial differences arose between the parties. According to them, the parties realized that they were not suitable to each other, their marriage had irretrievably broken down and there was no possibility of saving the marriage. There are no issues from the wedlock. Since 2nd August, 2007, the parties are living separately. Attempts for re-conciliation and re-settlement of the matrimonial home failed. Resultantly, with an intention to avoid any legal complications and to ensure that they do not litigate any further and to put an end to the matrimonial relationship by mutual consent without making any allegations against each other, the parties applied for dissolution of marriage by a decree of divorce by mutual consent under the provisions of section 13B of the “Act”. This petition for divorce by mutual consent was filed on 30th October, 2007. 3. When the matter came up before the learned Principal Judge of the Family Court, vide order dated 30th October, 2007, the petition was rejected. The petitioners, rather than assailing the said order in appeal, filed the present writ petition on the ground that the 4 reasons recorded by the learned Principal Judge Family Court, for rejecting the petition were unconstitutional. The order dated 30th October, 2007 reads as under: “On insistence of Shri Nitish Bhutekar, Advocate, following order is passed. The petition is filed under Sec. 13-B of the Hindu Marriage Act, 1955, although the marriage took place on 29th April, 2007 i.e. only six months back. Sec 13-B does not allow the parties to come to the court for divorce by mutual consent unless they complete one year or more separation. In this case, despite this clear provision the petition is not only filed but this order is insisted upon. ORDER The petition stands rejected. ” 4. According to the petitioners, the pre-condition that they should have lived separately for a period of one year or more for obtaining divorce by mutual consent under Section 13B of the Act is unconstitutional, arbitrary and tantamounts to an artificial classification which is impermissible and such a pre-condition is contrary to the object of insertion of section 13B of the Act. It has also been the plea, raised on behalf of the petitioners, that there is no nexus between the object sought to be achieved and the pre-condition of one year living separately as contemplated under section 13B. This condition is unreasonable and is not in consonance with the changing values of 5 the society. 5. In the case of Dr. Dwaraka Bal v. Professor Nainan Mathews, AIR 1953 Madras 792 the court observed that the law in India in its anxiety to protect the sacred institution of marriage, has not allowed mere incompatibility of temperament to be a ground for divorce. Till the law is amended courts must enforce the law and cannot make judge-made law by stretching law beyond its legitimate limits. The Court also said that a Judge is not the person to decide the interests of the society. When the law says a thing clearly, it must be carried out. Thus a Court cannot take into consideration that if divorce is not granted a healthy and sturdy women will go without a mate and that it would be in the interest of society to grant her divorce and allow her to marry a man she likes. Mere social good dehors the substantive law is not a concept certainly applicable. The law cannot be rendered nugatory on the ground of social good when the legislature is clear in its intent. 6. Interesting principles of law were stated by a Bench of this Court in the case of The State of Bombay v. Narasu Appa Mal, AIR 1952 Bombay 84. The Court, while dealing with the case under the Bombay Prevention of Hindu Bigamous Marriages Act, 1945, its constitutionality and other relevant facets, stated that equality before the law is not offended if the classification which the enactment makes is based on reasonable and rationale considerations. While 6 commenting upon the social aspects the Court repelled the contention that Hindu religion essentially made polygamy its integral part. The Court held as under: “Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole. A very interesting and instructive case is to be found in the American Reports, viz Davis v. Beason (1889) 133 U.S. 637. In that case it was contended that polygamy was part of the creed of the Mormon Church and any legislation which penalizes polygamy to the extent that it affected Mormons was contrary to the First Amendment of the Constitution which provided that Congress shall not make any law respecting the establishment of religion or forbidding the free exercise thereof. This argument was rejected, and Mr. Justice Field delivering the opinion of the Court pointed out that (p.640): “The term “religion” has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter.” He further pointed out that the First Amendment could not be invoked as a protection against 7 legislation for the punishment of acts inimical to the peace, good order and morals of society. He further pointed out that (p.640): “Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations a civil contract, and usually regulated by law. Upon it society may be said to be built and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.” Further on he states (p.640): “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” It is only with very considerable hesitation that I would like to speak about Hindu religion, but it is rather difficult to accept the proposition that polygamy is an integral part of Hindu religion. It is perfectly true that Hindu religion recognizes the necessity of a son for religious efficacy and spiritual salvation. That same religion also recognizes the institution of adoption. Therefore, the Hindu religion provides for the continuation of the line of a Hindu male within the frame-work of monogamy”. 7. Marriage under Hindu Law had not been treated as a contract simpliciter between two individuals but was stated to be a sacrosanct relationship between two human beings placing certain 8 obligations and duties vis-à-vis each other. Right from ancient times, in Hindu society, marriage has been treated and dealt with as a sacrosanct relationship between the two human beings requiring performance of the respective rights and obligations between them. Divorce in Hindu marriage was concept difficult of attainment and governed by stringent laws. Any provision in Hindu Law did not by itself ipso facto or ipso jure, operated as a dissolution of the marriage nor did it give either party to the marriage an automatic right to divorce. In other words, right to apply or obtain a divorce was ever controlled by the limitations of law and was not so liberally enforcible that a husband could marry and divorce a woman at his whim and fancy. Even in modern times, the courts took the view that even if both the parties to a Hindu Marriage get converted to a religion other than Hindu, their earlier Hindu marriage can be dissolved only under the provision of that Act. (Vilayat Raj v. Sunita, AIR 1983 Del. 351). 8. Prior to amendment of the Hindu Marriage Act in the year 1976, marriage of the parties could be dissolved only on the grounds stated under section 13 of the Act and the party claiming divorce had 9 a heavy onus to discharge strictly in relation to the ground alleged for seeking such a relief. However, after the amending Act 68 of 1976, not only various grounds stated in section 13 were liberalized to some extent but even section 13B was inserted in the Hindu Marriage Act. This, for the first time, provided the parties to the marriage solemnised before or after the commencement of the 1976 Amendment Act, to seek a relief for dissolution of their marriage by mutual consent. Provision of sections 13(1) and 13(2) provide for a person seeking divorce on ground of mutual consent. The provisions of section 13B require that three ingredients had to be satisfied before the court to grant such a relief to the parties; (i) the parties had been living separately for a period of more than a year, (ii) they had not been able to live together and (iii) that they have mutually agreed to dissolve the marriage. Once these three statutory conditions are satisfied then it gives jurisdiction to the court to entertain a petition for divorce by mutual consent. Still the court, on motion of both the parties but not earlier than six months from the date of presentation of the petition and not later than 18 months after the said date, after recording the statement of the parties and giving them an opportunity of being 10 heard and being satisfied that averments made in the petition are true, can pass a decree declaring the marriage to be dissolved with effect from the date of decree. This procedure has been said to be mandatory and consent of the parties must exist at the time of presentation of the petition in accordance with the provisions of section 13B(1) as well as at the time of making a motion and passing decree as per the provisions of section 13(2) of the Act. The Supreme Court in Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, while referring to the above stated three ingredients and explaining the meaning of the words `living separately’ and the `one year’ held as under: “7. Section 13-B is in pari materia with Section 28 of the Special Marriage Act, 1954. Sub-section (1) of Section 13-B requires that the petition for divorce by mutual consent must be presented to the court jointly by both the parties. Similarly, sub-section (2) providing for the motion before the court for hearing of the petition should also be by both the parties. 8. There are three other requirements in sub- section (1). They are: (i) They have been living separately for a period of one year, (ii) They have not been able to live together, 11 and (iii) They have mutually agreed that marriage should be dissolved. 9. The `living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they `have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.” 9. Of course, divergent views have been expressed by different High Courts and even by different Benches of the same High Courts. Various High Courts have taken view that period of six months for presentation of second motion is a mandatory requirement 12 and the courts have no jurisdiction to waive or vary such a period. Some of the judgments taking this view are, Mohinder Paul v. Gurmit Singh, 2001(3) PLR 424, Vinod Kumar v. Kamlesh 2002(1) LJR 210; Nitin Ramniklal Jhaveri v. Padmini Nitin Jhaveri 1985(1) DMC 347, Hitesh Narendra Doshi v. Jesal Hitesh Doshi, AIR 2000 Andhra Pradesh 362. However, contrary view has been expressed by other High Courts in the cases of Dineshkumar Shukla v. Smt. Neeta, AIR 2005 MP (Indore Bench) 106, Smt. Krishna Khetarpal v. Satish Lal, AIR 1987 P&H 191, Sonali w/o. Manishkumar Chandak & anr v. NIL 2007(5) Mh.L.J. 615 10. High Court of Andhra Pradesh in the case of Hitesh Narendra Doshi v. Jesal Hitesh Doshi, AIR 2000 Andhra Pradesh 362 and this court in Savitri w/o Sudesh Subba & anr v. The Principal Judge, Family Court, Nagpur W. P. No. 431 of 2006 decided on 28th February 2008, have taken the view that the period of six months intervening the filing of the application and motion being taken out by the parties was strictly to be mandatory and not dispensable while Delhi High Court in Abhay Chauhan v. Ms. Rachna Singh, AIR 2006 Delhi 18 has 13 taken the view that a period of six months can be waived. 11. In the case of S. Devi v. Om Prakash, 1991(2) SCC 25, the Supreme Court was primarily concerned with the question whether the court would have jurisdiction to pass decree by mutual consent even if one of the parties withdraws the consent as well as the scope of jurisdiction at the time of presentation of second motion. The Supreme Court clearly held that the consent of both the parties should exist even at the time of passing of the decree. Withdrawal of consent by one party would render the court to have no jurisdiction to pass decree by mutual consent. The Supreme Court also while holding that hearing of the parties is also necessary so that the court would satisfy itself as to whether the consent was not a result of force or fraud or undue influence. Following dictum of the Supreme Court in this case can be usefully noticed at this stage. “In this transitional period one of the parties may have a second thought and change its mind not to proceed with the petition. It may not then be a party to the joint motion under sub-section (2) which requires the court to hear “the parties”- which means both the parties. If one of the parties at the stage of inquiry withdraws his/her consent or refuses to be a willing party to the divorce, the court gets no jurisdiction to 14 make a decree of divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. “The consent must continue to decree nisi and must be valid subsisting consent when the case is heard”. 12. The primary contention raised before us is that the condition Nos.(i) and (ii) noticed (supra) are merely directory and can be suitably waived or altered by the court depending upon the facts and circumstances of the case and compliance of these conditions is not mandatory. The parties may chose to approach the court and file a petition under section 13B(1) without living separately for the stated period of one year. 13. The Legislature, while introducing the Amending Act 1976, did take into consideration the following: (i) to liberalise the provisions relating to divorce (ii) to enable expeditious disposal of proceedings under the Act and (iii) to remove certain anomalies and handicaps in the existing law. These ingredients are evident from the plain 15 language of the section and do not leave any scope for ambiguity. Thus, it would not be necessary for the court to expand its meaning and convert a mandatory provision into directory which may even result in defeating the object of the provision. In New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar, AIR 1963 SC 1207, the Supreme Court observed thus- “It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature”. 13.1. Provisions of section 13B of the Act are mandatory and the condition precedent to the presentation of the petition set out therein had to be satisfied strictly. Further, section 14 of the Act prior to 1976 amendment had put a further bar stating that notwithstanding anything contained in the Act, the courts shall not be competent to entertain any petition for dissolution of marriage by a decree of divorce unless the petition had been presented after a lapse of three years since the date of marriage. However, proviso to section 14(1) provided an exception to the effect that a petition could be presented even before the expiry of the said period of three years if 16 circumstances of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent existed and in such cases the courts may, after hearing, pronounce a decree subject to the condition that the decree shall not have effect until after the expiry of three years. In this backdrop and while amending the Act in the year 1976, the Legislature while keeping the three of its afore- mentioned objects in mind, reduced the period from three years to one year and maintained the language of section 14 as well as its proviso otherwise intact. In other words, the Legislature did not alter or change the contents of ingredients of section 14 except to the extent of reducing the period from three years to one year. This is despite the fact that the Law Commission in its recommendations relating to section 14 of the Act in its 59th Report in March 1974 had asked for deletion of section 14 of the Act. 14. As already noticed, by the same Act 68 of 1976, section 14 was amended and section 13B was introduced in the Act. The language of section 13B is clear and unambiguous. The Legislature in its wisdom did not introduce any relaxation in section 13B of the 17 Act. There is nothing in the language of section which can suggest that the provisions of section 13B are simplicitor procedurally directed and can be moulded by the court in exercise of its judicial discretion depending on the facts and circumstances of the case. This provision is intended to liberalise the provisions relating to divorce. Being aware of the existing provisions, report of the Law Commission and the need of the society still the Legislature chose not to add any proviso granting relaxation to the conditions imposed under section 13B(1) and/or 13B(2). It would not be permissible for the court to read the expression `living separately for a period of one year or more’ as by adding the word `may’ or for such period as the court in its discretion may consider appropriate. We shall shortly proceed to discuss the purpose of introduction of section 13B and its object. It is a settled rule of interpretation that court while interpreting the statutory provisions would not add or subtract the words from the section nor would it give meaning to the language of the section other than what is intended on the plain reading of the provision. Reference can be made to the judgment of the Supreme Court in Vijayalakshmamma and another v. B.T. Shankar, (2001) 4 SCC 558 where the court held 18 as under: “21. The nature, object and purpose of the Act in question has already been noticed supra. Parliament has consciously and deliberately effected certain vital and substantial changes in the personal law of the Hindus in several branches including the law relating to adoptions. The statement of Objects and Reasons, so far as it pertains to the law on adoption reads as follows: “This part of the Hindu Code deals with the subject of adoptions and maintenance among Hindus. 2. With the passing of the Hindu Succession Act, 1956, which treats sons and daughters equally in the matter of succession, it has now become possible to simplify the law of adoption among Hindus. The Bill provides for allowing a husband to prevent his wife from taking a child in adoption after his death. The adoption made by a Hindu widow will hereafter be in her own right. NO person need be divested of any property which has vested in him by reason only of the fact that subsequent to such vesting an adoption has been made. This rule of divesting has been the cause of many a ruinous litigation.” (emphasis supplied) 22. This Court also endorsed the said position in the decision reported in G. Appaswami Chettiar v. R. Sarangapani Chettiar AIR vide para 13. The extent to which and the areas and aspects or facets of old Hindu law which required modernisation, modification and alteration are matters of legislative policy and merely because a particular change has been brought into effect 19 in respect of one facet of law in force and a provision has been made specifically only to that limited extent, the