IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REFERENCE NO.2 OF 2007 Principal Judge, Family Court, Nyaya Mandir Premises, Civil Lines, Nagpur .. Petitioner v/s. Nil .. Respondent None for the petitioner. Ms. Jyoti Dharmadhikari for the respondent. CORAM : SWATANTER KUMAR, C.J. & V.M. KANADE, J. Date of reserving the judgment : 22nd April, 2008 Date of pronouncing the judgment : June, 2008 JUDGMENT (Per Swatanter Kumar, C.J.) The Reference The Principal Judge, Family Court, Nagpur confronted with the divergent views expressed by the learned Single Judge of this court in writ petition No.431 of 2006 (Smt. Savitri w/o. Sudesh Subba and another v. The Principal Judge, Family Court, Nagpur) and (Sau. Sonali w/o. Manishkumar Chandak and another v. Nil, in 1 1 writ petition No.6086 of 2007, [(2007(5) Mh.L.J. 615], in exercise of the limited jurisdiction vested in the court under section 113 of the Civil Procedure Code, referred the matter for opinion and guidance of this court vide his order dated 13th September, 2007 on the following questions: i) Whether the statutory waiting period of six months under section 13-B(2) of Hindu Marriage Act can be waived by the Trial Court or not may kindly be decided. ii) Necessary guidance or directions may kindly be issued as prayed. 2. Before discussing the merits of the arguments raised by the learned counsel for the parties, reference to basic facts would be necessary. Facts giving rise to the reference 2 2 3. Tushar and Sou. Meenal were married at Nagpur on 9th May, 2006 according to Hindu rites. They lived together as husband and wife and co-habited at Vadodara, Gujarat State till 1st September, 2006. According to the parties, attitudinal differences arose between the parties and they started living separately. Various efforts to improve their relations were made by their relatives and friends but were in vain and they continued to live separately. On 11.9.2007, they filed the petition under section 13B of the Hindu Marriage Act, 1955 (hereinafter to be referred to as the Act) for a decree of divorce by mutual consent. Alongwith the petition, a separate application was filed by the parties praying that the trial court should condone the period of six months as contemplated under section 13-B(2) of the Act and instantaneous decree of divorce be granted in the interest of justice. The parties had relied upon the case of Sou. Sonali (supra) in support of their prayer for condoning the period of six months and for passing of a decree of divorce on mutual consent instantaneously. A divergent view of another Single Judge of this court in another judgment, as already noticed, was also brought to 3 3 the notice of the learned trial Judge resulting in passing of the order dated 13th September, 2007 making a reference to this court. Law relating to marriage, divorce by mutual consent and its background 4. In fact, the legal impediment faced by the court making reference emerged from the divergent views taken by the different Benches of this court as well as by other courts. In order to understand and appropriately answer the question framed by the learned reference court, it may be useful to refer to the legal history of the institution of marriage in India and particularly, between the Hindus. The origin of marriage amongst Aryans in India as amongst other ancient people is a matter for the science of anthropology. From the very commencement of the Rigvedic age, marriage was a well-established institution, and the Aryan ideal of marriage was very high. Monogamy was the approved rule, though polygamy existed to some extent. It is said that there is no real evidence of existence of polyandry and matriarchy in 4 4 Vedic times. Marriage life was a strict bond and certain matrimonial offences like adultery etc. were viewed seriously and for such an offence, either of the concerned spouse could be held guilty and punished. Dissolution of marriage was normally not an accepted concept. Men were expected to honour women. She was associated in all religious offerings and rituals with her husband. As the old writers said "a woman is a half of her husband and completes him". Manu, in impressive verses, exhorted men to honour and respect women. "Women must be honoured and adorned by their fathers, brothers, husbands, and brothers-in-law who desire their own welfare. Where women are honoured, there the gods are pleased; but where they are not honoured, no sacred rite yields rewards". "The husband receives his wife from the gods, he must always support her while she is faithful". In Hindus, marriage is one of the necessary sanskaras or religious rites for all Hindus to whichever caste they belong unless the individual concerned ought to be a perpetual Bramhachari or Sanyasi. While marriage, according to Hindu Law, is a sacrament, it is also a civil contract, which takes the form of a gift in the 5 5 Brahma, a sale in the Asura, and an agreement in the Gandharva. (Muttuswami Nydakuar v, Nasukanabu (1910) 33 Madras, 342.) It is also said that marriage is necessarily the basis of social organisation and the foundation of important legal rights and obligations. In the earlier times, in Hindu Law, there were no less than 8 different forms of marriage and each being different from the other and at the same time, each form of marriage depicts a different stage of social progress. In consequence of the varying rates at which society had advanced in different parts of India, the forms of marriage prevailing among the Hindus and the mixed Hindu races, mostly of non-Aryan origin, were of the most varied description. Brahma was one of the most recognized form of marriages and was distinguished from the other that it was a gift of a girl pure and simple. The essential ceremonies of different marriages were more or less the same. The marriage was treated primarily as a sacrament clubbed with the binding civil contract. This court while considering the sacramental and contractual aspect of a Hindu marriage, observed in the case of Miten (supra) thus- 6 6 “21. Some divergent views prevailed whether under Hindu Law, as applied by courts in India, marriage was a sacrament or both, a sacrament and contract. The courts expressed the view that it was not merely a sacrament but also a civil contract. This concept was examined in relation to determination of various cases for reliefs flowing from the marriage between the parties. Introduction of the principle of a civil contract while it helped to support the conclusion reached in the particular case was, however, apt to give rise to a misconception and greater difficulties in other cases. In Hindu Law, the admixture of religion and ethics with legal precepts was naturally congruent. The ultimate view followed by the courts has been that it is not always to draw any hard line of logical demarcation between matters, secular and religious, because certain questions such as for instance as marriage and adoption had the aspects of both. Marriage under Hindu Law was primarily and essentially a sacrament. Having elements both, religion and secularity, it was the source and foundation of the status of the parties; and of their right to associate in religious observance and also of correlative rights and duties in temporal matters. Under Hindu Marriage Act, the marriage must be solemnized in accordance with the customary rites and ceremonies of at least one of the parties thereto and must fulfill the conditions prescribed for the same. The Act may not have used the expression `sacramental marriage’ but speaks of a `Hindu marriage’ solemnized in accordance with the customary rites and ceremonies of either party, presumably because of the very wide connotation of the expression ` Hindu’ and the inappropriateness of emphasizing the sacramental aspects when the customary rights and ceremonies are to be solemnized. The element of consent is important as well. Thus, Hindu marriage is essentially to be 7 7 construed as a sacrament coupled with the rights and duties arising under the provisions of the Act.” 5. After coming into force of the relevant laws, thorny question relating to divorce vexed all concerned. In earlier Hindu Law, divorce, strictly so called, was not allowed except in certain communities and in certain circumstances. Some of the Smitikars, though not strictly dealing with the concept of divorce in the sense it is now understood, did declare that the woman could take a second husband in certain events. There was deep-rooted sentiment against any provision of divorce, when the new legislation was being forged despite the protest. The Hindu Marriage Act, 1955 thereafter specifically provided for dissolution of marriage by a decree of divorce but only on the grounds stated in section 13 of the Act. By virtue of subsequent events, as an exception, this strict rule was liberalised by introduction of section 13B of the Act where it was made possible to obtain a decree of divorce by mutual consent irrespective of the grounds indicated in section 13 of the Act. But the parties were required to follow the procedure and satisfy the grounds spelt out under section 13B. 8 8 (Mulla Hindu Law, Eighteenth Edition, Vol.2 by Satyajeet A. Desai). The provisions of section 13B are reproduced for the purpose of further discussion: [13-B. 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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 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 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 the decree.] Recent view of this court on constitutional validity of Section 13-B 6. Before we proceed to embark upon a detailed discussion on the interpretation of the provisions of section 13B of the Act, it will 9 9 be very apt to refer to a recent Division Bench judgment of this court in the case of Miten v. Union of India. In that case, the court was concerned with the constitutional validity or otherwise of the provisions of section 13B of the Act in so far as it related to the pre-requisite period of separation for one year for instituting the petition. The constitutional validity of the provision was challenged on the ground that it was not mandatory, the legislative fixation of period of one year was arbitrary and has no nexus to the object of the Act or the provision. The court while dealing with the different contentions raised before it and after referring to various judgments of the Supreme Court, concluded as under: "The inconvenience of the petitioners that they have to stay separate for few months more is disproportionate to the social good and legislative object of fair chance of survival of marriage. The balance clearly tilts in favour of the legislation rather than it being ultra vires. We have already noticed that Hindu marriage is a sacrament coupled with an element of contract supported by statutory provisions. Thus, it cannot be treated as a contract simplicitor which is capable of being abruptly determined at the whim and fancy of the parties to the marriage. Any approach to the contrary will adversely affect the social fabric and the institution of marriage. The parties to marriage should realise their obligation towards each other and the family, in terms of law and its social and sacrosanct values. 10 10 The law requires them to stay separately for a period of one year before presenting a petition for divorce by mutual consent which can hardly be termed as an exceptional inconvenience or hardship vitiating the law. Even cases of extreme hardship are not left without remedy under the scheme of the Act. A petition for divorce by mutual consent has to be treated on different footings and it must satisfy the conditions precedent to presentation of such a petition and it is obligatory upon the court to satisfy itself regarding solemnization of marriage and correctness of the averments made in the petition. Then alone a decree under this special provision can follow. No hardship or inconvenience is projected by the petitioners to seriously challenge the constitutional validity of Section 13-B of the Act. We are unable to assent to the submissions made on behalf of the petitioners that the provisions of Section 13-B of the Act are ultra vires to the constitutional mandate and/or great hardship or inconvenience flow therefrom which has the effect of interfering with the fundamental freedom guaranteed under the Constitution. Divergent views : whether six months waiting is mandatory or directory? 7. While arriving at the above conclusion, the court also had an occasion to notice the divergent view taken by different courts including this court in relation to the period of six months contemplated under section 13B(2) as mandatory or directory and 11 11 whether it could be condoned or not by the court. These views were noticed in para 9 of the judgment which reads as under: "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 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 taken the view that a period of six months can be waived." 12 12 8. Obviously, the Division Bench in that case was not concerned and had no occasion to conclude on this legal issue arising from the provisions of section 13B(2) but the observation of the Division Bench in regard to the period of one year being mandatory or directory and whether compliance thereof was essential before praying for a decree of divorce on the ground of mutual consent, is relevant. The court while taking the view that these were mandatory provisions and the parties were expected to satisfy the essential ingredients of these provisions, held that the petition under section 13B could be filed and upon due enquiry and after recording of satisfaction, a decree of divorce could be recorded by the court concerned. "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 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- 13 13 "It is a recognised rule of interpretation of statues 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 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 aforesaid 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 14 14 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 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 plaint reading of the provisions. Reference can be made to the judgment of the Supreme Court in Vijayakshmma and another v. B.T. Shankar (2001) 4 SCC 558 where the court held as under: "21. The nature, object and purpose of the Act in question have already been noticed supra. Parliament has consciously and deliberately effected certain vital and 15 15 substantial changes in the personal 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 [AIR 1978 SC 1051 : 1978(3) SCC 55] vide in 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 in respect of one facet of law in force and a provision has been made specifically only to that limited extent, the courts can neither by means of an interpretative 16 16 process nor under the guise of ensuring parity in what it may seem to the court would be desirable to achieve uniformity (an area once again exclusively pertaining to policy of legislation) add to or alter the language, structure and content of a provision by reading into it what was not specifically intended or what perhaps was deliberately and consciously avoided by Parliament itself. Section 7 bears the caption "Capacity of a male Hindu to take in adoption" in the same manner the immediately following Section 8 bears the heading "Capacity of a female Hindu to take in adoption." When Parliament resolved to provide for and insist upon the obtaining of the consent of the wife or if there are more than one living wife the consent of all of them, unless they or any one of them suffered any of the enumerated infirmities rendering such consent unnecessary, the conscious and positive as well as deliberate omission to provide for a female Hindu seeking or obtaining any such consent from a co or junior widow is a definite pointer to indicate that the legislative intent and determination was not to impose any such clog on the power specifically conferred upon the female Hindu- may be for the obvious reason that under the scheme of the Act the Hindu female has been enabled and empowered to adopt not only to herself but also to her husband, and also in tune with the changed and modern concept of equality of women and their capabilities to decide independently statutorily recognised, and the very reason for insisting upon such an authority or consent from the husband or the sapindas under the old Hindu law having lost its basis and thereby ceased to be of any relevance or valid purpose whatsoever. In such circumstances, acceding to the submission to read into Section 8 the stipulation in the proviso to Section 7