Disposed¶43

Afrin Das v. Alok Das

Chhattisgarh HC13 Jun 2024FA(MAT)/295/2023

Case brief

AI extract

What is this about?

Mutual consent divorce under Section 28 Special Marriage Act 1954 treated as akin to Section 13B Hindu Marriage Act 1955; waiver/dispensation of waiting (cooling-off) period under Section 28(2) where separation exceeded one year and reconciliation futile; reliance on Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746; Kailash v. Nanhku (2005) 4 SCC 480 referred within quoted passage; registered marriage 06/09/2016; separation since 11/07/2021; Family Court Bastar Jagdalpur Civil Suit Case No.114A/2021 rejection reversed in effect by dissolution decree; High Court of Chhattisgarh Bilaspur; FA(MAT) appeal disposed.

What did the court decide?

Marriage solemnized on 06/09/2016 dissolved by decree of divorce; a decree to be drawn accordingly; appeal disposed of. ¶43

Afrin Das Vs Alok Das — Matrimonial and Divorce | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

Marriage solemnized on 06/09/2016 dissolved by decree of divorce; a decree to be drawn accordingly; appeal disposed of.

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Issue for consideration

Whether the marriage solemnized on 06/09/2016 should be dissolved by decree of divorce by mutual consent under Section 28 of the Special Marriage Act, 1954, given that both parties stated they have been residing separately since 11/07/2021, are not able to live together, and have mutually agreed to dissolve the marriage. +1 more

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Court's answer

Divorce by mutual consent provided under Section 28 of the Special Marriage Act, 1954 is akin to Section 13B of the Hindu Marriage Act, 1955.

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Ratio / Principle

Since the parties were present in person, had been living separately for more than a year, and reconciliation was not possible, the waiting period would prolong their agony; therefore, instead of reverting the parties to the District Judge, exercising the power conferred under Section 28 of the Act, 1954, the Court directed that the marriage dated 06/09/2016 is dissolved by decree of divorce.

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Detailed headnote1 paragraphs

FA(MAT) No. 295 of 2023, High Court of Chhattisgarh, Bilaspur (Goutam Bhaduri & Rajani Dubey, JJ.; judgment per Goutam Bhaduri, J.; 14/06/2024): Spouses married on 06/09/2016 by registered marriage before the Office of the Collector, residing separately since 11/07/2021 and unable to reconcile, jointly sought dissolution after the Judge, Family Court Bastar at Jagdalpur (Civil Suit Case No.114A/2021) had rejected the wife's divorce application by judgment and decree dated 07/09/2023. Treating Section 28, Special Marriage Act, 1954 as akin to Section 13B, Hindu Marriage Act, 1955, and relying on Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 on the purpose of the cooling-off period, the Court held that further waiting would merely prolong the parties' agony and, instead of reverting them to the District Judge, exercised the power under Section 28 of the Act, 1954 to dissolve the marriage by decree of divorce forthwith; appeal disposed of.

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FA(MAT) No.295 of 2023 Afrin Das Versus Alok Das

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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FA(MAT) No. 295 of 2023

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Afrin Das W/o Alok Das Aged About 23 Years R/o Vivekanand Ward No. 30, Nuru Misjid, Hatkachora, Jagdalpur, District Bastar (C.G.)

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---- Appellant

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Versus

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Alok Das S/o Uttam Das Aged About 26 Years R/o Beside High School, Orna Camp, Adawal, Jagdalpur, District Bastar (C.G.)

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---- Respondent

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For Appellant	:	Shri Siddharth Rathod, Advocate
For Respondent	:	Shri P.K. Tulsyan, Advocate

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Both the parties are also present before this Court in person

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Hon'ble Shri Justice Goutam Bhaduri &

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Hon'ble Smt. Justice Rajani Dubey

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Judgment on Board

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Per Goutam Bhaduri, J

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14/06/2024

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Heard.

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The instant appeal has been filed by the appellant/wife against the judgment and decree dated 07/09/2023 passed by the Judge, Family Court Bastar at Jagdalpur in Civil Suit Case No.114A/2021 whereby the application for seeking decree of divorce has been rejected.

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The marriage in between the parties was solemnized on 06/09/2016 before the Office of the Collector as a registered marriage. Thereafter a child was also born out of the wedlock. The appellant/wife filed an

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FA(MAT) No.295 of 2023 Afrin Das Versus Alok Das

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application for seeking divorce but the same having been dismissed by the learned family Court this appeal has been filed.

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Both the parties i.e. the appellant and the respondent who are present before this Court stated that they are residing separately since 11/07/2021 and they are not able to live together, consequently, they have mutually agreed to dissolve their marriage.

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Having asked the parties about the implication of the application which they have filed, they both submit that they are living separately since 2021 and more than a year has passed, therefore, on an interaction with the parties it has come to fore that the primary effort to reconcile proved to be futile and both the parties do not want to continue with their relationship.

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Divorce by mutual consent provided under Section 28 of the Special Marriage Act, 1954 (hereinafter referred to as the Act, 1954) is akin to Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, 1955’). Section 28 of the Act, 1954 is reproduced hereinbelow:-

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“ 28. 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.

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(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,

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FA(MAT) No.295 of 2023 Afrin Das Versus Alok Das

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after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized 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.”

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The Supreme Court in the matter of Amardeep Singh Vs. Harveen Kaur {(2017) 8 SCC 746} has held that the object of the provision is to enable the parties to dissolve a marriage by consent if the marriage is irretrievably broke down and to enable them to rehabilitate them as per available options and the object of cooling-off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled and it was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. With respect to Section 13B of the Act, 1955 the Court has held thus in para 17 & 18 which are reproduced hereinbelow:-

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17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling-off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

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18. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The court has to have the regard to the context, the subject-matter and the object of the

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FA(MAT) No.295 of 2023 Afrin Das Versus Alok Das

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provision. This principle, as formulated in Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn., 2004), has been cited with approval in Kailash v. Nanhku [ Kailash v. Nanhku , (2005) 4 SCC 480] as follows : (SCC pp. 496-97, para 34)

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“ 34 . … ‘The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oftquoted passage Lord Campbell said:“No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.

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“For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”

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Since the parties are present in person before the Court and both are seeking mutual divorce and stated that they are living separately since more than a year and reconciliation is not possible, therefore, the

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FA(MAT) No.295 of 2023 Afrin Das Versus Alok Das 5

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waiting period will prolong their agony and the summary enquiry which is contemplated under Section 28 (2) of the Act, 1954, the parties revealed that they do not want to stay together.

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Accordingly, instead of reverting back the parties to the District Judge in exercise of power which is conferred to the Court under Section 28 of the Act, 1954, we direct that the marriage dated 06/09/2016 is dissolved by decree of divorce henceforth. Ordered accordingly.

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A decree be drawn accordingly.

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With the aforesaid observation, the Appeal is disposed of.

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SD/- SD/- (Goutam Bhaduri) (Rajani Dubey) Judge Judge

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Ashu

Afrin Das v. Alok Das

Case brief

What is this about?

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Afrin Das v. Alok Das

Case brief

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