Dismissed

Kunal Ranawat v. Rativa Jahan Ranawat

Himachal Pradesh HC17 Jul 2017CMPMO/180/2017

Case brief

AI extract

What is this about?

Two petitioners challenged orders granting a six-month cooling-off period for divorce by mutual consent, arguing the marriage had broken down irretrievably. The High Court held only the Supreme Court can waive this period under Article 142 of the Constitution.

What did the court decide?

The petitions were dismissed, and the orders of the Court below were upheld, leaving parties to bear their own costs.

Kunal Ranawat Vs Rativa Jahan Ranawat — Matrimonial and Divorce | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CMPMO No. 180 of 2017 & CMPMO No. 181 of 2017 Reserved on 04.07.2017 Decided on: 17.07.2017

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_______________________________________________________________ CMPMO No. 180 of 2017

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Kunal Ranawat

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…..Petitioner Versus ……Respondent …..Petitioner Versus ……Respondent

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Rativa Jahan Ranawat CMPMO No. 181 of 2017 Rativa Jahan Ranawat Kunal Ranawat

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_____________________________________________________________ Coram_

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The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting?

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_______________________________________________________________ For the petitioner: Mr. Prashant Sharma, Advocate in CMPMO No. 180 of 2017. Mr. Rajiv Jiwan, Advocate in CMPMO No. 181 of 2017. For the respondent: Mr. Rajiv Jiwan, Advocate in CMPMO No. 180 of 2017. Mr. Prashant Sharma, Advocate in CMPMO No. 181 of 2017.

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Chander Bhusan Barowalia, Judge.

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Since both the petitioners are seeking same relief, as also, common facts are involved in these petitions,

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hence, both these petitions were taken up together for

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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hearing and are being disposed of by this common judgment.

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The present petitions are maintained by the petitioners/applicants (hereinafter to be called as “the applicants”) under Article 227 of the Constitution of India, read with Section 151 of the Code of Civil Procedure, against the order dated 18.03.2017, passed in CMP No. 736/2017, as well as order dated 27.02.2017, passed in CMP No. 47-6/2017, wherein six months cooling off period was granted to the petitioners and the case was fixed for consideration of divorce with mutual consent on 30.08.2017.

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Key facts, giving rise to the present petitions are

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that the applicant-husband had instituted a petition for grant of decree of divorce under Section 13(1) (i-a) of the Hindu Marriage Act, before learned District Judge, Bilaspur, H.P. against the applicant-wife, on account of cruelty, misbehavior and desertion, wherein it has been mentioned that marriage between the parties has been solemnized in the year 2012 at Bilaspur, H.P. and from such wedlock, no issue was born. The respondent-wife, by filing reply to the said petition admitted the strained relation between the parties and she claimed maintenance to the tune of Rs.

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75,00,000/- for dissolving of marriage. Thereafter, both husband and wife preferred CMP No. 47/6/2017, under Order 23, Rule 3 CPC, read with Section 151 CPC, for converting the earlier petition (filed by the husband) under Section 13(1) (i-a) of the Hindu Marriage Act to a joint petition on the ground ‘compromise’. Accordingly, a joint application was moved under Section 13(1) (b) of Hindu Marriage Act by both the parties, wherein they averred that they were living separately from each other since February, 2016 and there have been no cohabitation between them between this period. It has been further averred in the application that a project was offered to the husband in South Pacific Asia, but due to pendency of the present case, he is unable to accept that project. Further the said application was saddled on one time settlement arrived at between the parties, whereby the wife had claimed ` 75,00,000/- (Rupees seventy five lac), as one time maintenance amount to dissolved the marriage with mutual consent and in view of the settlement, the wife shall forfeit all claims against her husband or his estate in future. In terms of said application, both the parties agreed to withdraw all their cases, including the complaint filed by the wife under

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Domestic Violence Act. Thereafter, on the above said application, the statements of the parties were recorded on 27.02.2017 (Annexure P-4) . Though the applicants have preferred the application for conversion of the divorce petition into a petition for granting the divorce by mutual consent, on the grounds that the parties were living separately for more than six months, yet learned Court below has posted the matter after six months i.e, on 30.08.2017, as a cooling off period. After that the parties with a plea that the cooling off period has already been fulfilled by them, moved another application No. 73/6 of 2017, under Section 151 CPC, for recalling that order, as the matter was fixed for consideration of divorce with mutual consent after six months. However, the same was dismissed by the learned District Judge, Bilaspur, H.P. with the observations that “ there is no power with this Court to waive off the period of six months, hence, there is no substance in the application ”. Hence the present petitions.

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I have heard the learned counsel for the parties and gone through the record carefully.

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Mr. Prashant Sharma and Mr. Rajiv Jiwan, Advocates, for the petitioners have argued that both the

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petitioners are residing separately since February, 2016 and there is no hope of reconciliation between them. They have further argued that the marriage has broken down irretrievably, the parties have not been cohabiting with each other and living separately since February, 2016, now the parties by way of one time settlement have compromised the matter vide Compromise Deed (Ext. PA). As per the terms and conditions of Compromise Deed (Ext. PA), the petitioner-wife has mutually agreed to one time settlement and claimed ` 75,00,000/-(Rupees seventy five lac) as one time maintenance amount to dissolved the marriage with mutual consent and in view of the settlement, the wife shall forfeit all claims against her husband or his estate in future. Learned counsel for the parties have further argued that as there are no other issues or disputes regarding any articles, pending to be resolved between the petitioners, therefore, there is no impediment in curtailing the period of six months and granting a decree of divorce by mutual consent, hence the present petitions are required to be allowed and orders of learned Court below are required to be set aside.

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Hon’ble Supreme Court in Sureshta Devi vs. Om

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Prakash’s case, has discussed in detail, the legislative intent behind the waiting period from six months to eighteen months in Section 13-B (2) of the Act. The relevant extracts of the judgment are reproduced hereinbelow.

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“10. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than eighteen months after the said date. This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the Court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce. 13. from the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorize the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be party to the joint motion under sub-section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the

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petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Subsection (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties…if the petition is not withdrawn in the meantime, the Court shall… pass a decree of divorce…” What is significant in this provision is that there should also be mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bonafides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree of divorce. If the view is otherwise, the Court could make an inquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.

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14. Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that “I have withdrawn my consent”, or “I am not a willing party to the divorce”, the Court cannot pass a decree of divorce by mutual consent. 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.”

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Now coming to the present case, the issue that

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arises for consideration is, whether the statutory period of six

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months, as envisaged under Section 13-B (2) of the Act, can be curtailed by this Court.

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In Anil Kumar Jain vs. Maya Jain, 2009 (10) SCC, 415, the Hon’ble Supreme Court, has held that it has power under Article 142 of the Constitution of India to convert proceedings under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and grant a decree for mutual divorce without waiting for the statutory period of six months, by applying the doctrine of irretrievable breakdown of marriage. However, the Hon’ble Apex Court has categorically held, in no uncertain terms, that except for the Supreme Court, no High Court or Civil Court has the power to grant relief by invoking the doctrine of irretrievable breakdown of marriage. The Hon’ble Supreme Court has held as under :

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“28. It may, however, be indicated that in some of the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution, this question had arisen and it was held in most of the cases that despite the fact that the marriage had broken down irretrievably, the same was not a ground for granting a decree of divorce either under Section 13 or Section 13-B of the Hindu Marriage Act, 1955.

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29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the

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grounds indicated whether under Section 13 of 13-B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceedings under either of the said provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of Irretrievable breakdown of marriage is not available even to the High Courts, which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the Civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13 and 13-B of the Hindu Marriage Act, 1955.

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30. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other Courts can exercise such powers. The other Courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties.”

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The above principles of law are reiterated by

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the Hon’ble Supreme Court in Manish Goel vs. Rohini Goel,

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2010 (4) SCC 393 , which reads thus:

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“ 12. In Anjana Kishore vs. Puneet Kishore, this Court while allowing a transfer petition directed the Court concerned to decide the case of divorce by mutual consent, ignoring the statutory requirement of moving the motion after expiry of the period of six months under Section 13-B (2) of the Act. In Anil Kumar Jain, this Court held that an order of waiving the statutory requirements can be passed only by this Court in exercise of its powers under Article 142 of the Constitution. The said power is not vested with any other Court .

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13. However, we have also noticed various judgments of this Court taking a contrary view to the effect that in case the legal ground for grant of divorce is missing, exercising such power tantamounts to legislation and thus transgression of the powers of the legislature, which is not permissible in law.

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14. Generally, no Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.”

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In the present case, the ground taken by the petitioners is that their marriage has broken down irretrievably and the parties have not been cohabiting with each other and living separately since February, 2016, both the petitioners have mutually agreed that it be dissolved, hence the waiving period of six months ought to be curtailed.

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It is clear from the judgments of the Hon’ble Supreme Court reproduced hereinabove that in curtailing the statutory period of six months and granting a decree of divorce by mutual consent, except Hon’ble the Supreme Court, this power is not available to any other Court, including this Court. Such powers can be exercised only by the Hon’ble Supreme Court, under Article 142 of the Constitution of India.

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Accordingly, in view of the law, as laid down by the Hon’ble Supreme Court in Anil Kumar Jain vs. Maya Jain and Manish Goel vs. Rohini Goel , I find no illegality in the orders passed by the learned Court below and the present petitions deserve dismissal and are accordingly dismissed. However, in the peculiar facts and circumstances of the case, parties are left to bear their own cost(s).

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The petition(s) stands disposed of, so also pending application(s), if any.

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(Chander Bhusan Barowalia) Judge

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17^th July, 2017 (raman)

Kunal Ranawat v. Rativa Jahan Ranawat

Case brief

What is this about?

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Kunal Ranawat v. Rativa Jahan Ranawat

Case brief

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