HON’BLE SRI JUSTICE R. SUBHASH REDDY AND HON’BLE SRI JUSTICE A.SHANKAR NARAYANA FAMILY COURT APPEAL No.41 of 2014
JUDGMENT : (Per Justice R. Subhash Reddy)
This appeal is filed under Section 19 of the Family Courts Act, 1984 by the applicants in I.A.No.72 of 2014 in O.P.(SR).No.561 of 2014, filed before the Family Court, Hyderabad, aggrieved by order dated 05.02.2014, passed in the said I.A.
It is an unfortunate case where a young couple who were married on 10.11.2013, have filed a petition for grant of divorce by mutual consent, under Section 13-B of the Hindu Marriage Act, 1955, just few days after their marriage. When such application is dismissed on the ground that it is filed within the prohibited period of one year from the date of marriage, this appeal is preferred.
It is the case of appellants that they were married on 10.11.2013 and the marriage was performed at Satya Sai Nigamagamam, Dwarakapuri Colony, Panjagutta, Hyderabad, and reception was held on 12.11.2013. It is alleged that on 13.11.2013, the 2nd appellant left the matrimonial house and went to her parents’ house without informing the 1st appellant. It is stated that there were differences between the appellants, and consequently, there ensued wordy duel among their parents, and that the elder members on both sides tried to pacify the disputes which crop up, but their efforts went in vain, as such, they have decided to get separated. Accordingly, application under Section 13-B of the Hindu Marriage Act, 1955 was filed on 27.01.2014.
Sections 13 and 14 of the Hindu Marriage Act, 1955 read as under :
“Section 13 :- Divorce- (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion ; or
(iii) has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation- In this clause-
(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia;
(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from veneral disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
Explanation :- In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.
(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground-
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition;
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation.- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Law (Amendment) Act, 1976.
13-A. Alternate Relief in Divorce Proceedings.- If any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
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 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 mean time, 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.
Section 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 marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the 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 petitioner obtained leave to present the petition by any mis-representation 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.”
From a reading of the aforesaid provisions, it is clear that no application for grant of decree of divorce by mutual consent can be entertained within one year from the date of marriage. However, under explanation to Section 14 of the Act, power is conferred on the Court to grant leave to file such application before expiry of one year in case of exceptional hardship. When application is filed seeking leave in I.A.No.72 of 2014, same is dismissed by the Family Court by impugned order, as against which, this appeal is filed.
Heard Sri N.Subba Rao, learned counsel for appellants.
In this appeal, it is contended by the learned counsel for appellants that the marriage of appellants was solemnized on 10.11.2013, but within three days, disputes arose between them and though there was intervention by elders to settle such disputes, the same were of no avail, as such, they have decided to get separated by a decree of divorce by mutual consent. It is submitted that the marriage was not consummated. With regard to exceptional hardship, it is submitted by the learned counsel that as much as disputes arose within three days of the marriage, and further, as the marriage was not consummated, the Family Court ought to have granted leave to file application within the prohibited period of one year. The learned counsel, in support of his contentions, has placed reliance on the judgments in Meganatha Nayagar Vs. Smt. Susheela
[1]
, in Rabindra Nath
[2]
Mukherjee Vs. ITI Mukherjee @ Chatterjee and In Re
[3]
Ujwal Sheety & another .
Section 13-B of the Hindu Marriage Act provides for grant of decree of divorce when application is filed with mutual consent by both the parties, but under Section 14, there is bar from presenting such application unless one year period expires from the date of marriage. Section 14, however, prescribes that if it is a case of exceptional hardship, parties may apply to the Court for waiver of such condition, in which case, the petition can be presented within such one year prohibited period also. The phrase “exceptional hardship” is not defined under the Act, hence, whether such exceptional hardship exists or not, is a matter to be considered by the Court on the basis of facts of each case. From a perusal of Section 14 of the Act, it is clear that only in case of exceptional hardship, power is conferred on the Court to grant leave to prefer application within the prohibited period of one year from the date of marriage. Having regard to the words used under Section 14 of the Act, if one suffers hardship greater than the ordinarily associated hardship having regard to the facts of each case, Court can decide whether the situation of exceptional hardship prevails in a particular case or not for grant of leave, because, the bar of entertaining the applications under Section 14 appears to have been purposely made by the Legislature so as to prevent filing of such applications in a hasty manner. It is quite common that at young age, couple may involve in misunderstandings, and in a hurried manner, they may approach the Courts seeking divorce. If sufficient time is given to them, they may cool their tempers and may reconcile to stay together. Only to prevent such hasty applications from being filed for divorce, the express prohibition is made under Section 14 of the Hindu Marriage Act. Unless there are facts which constitute exceptional hardship, no application can be allowed to be entertained within one year from the date of marriage. The two submissions made by the learned counsel for appellants that disputes arose between the appellants just few days after the marriage and the marriage was not consummated, do not constitute ‘exceptional hardship’ as envisaged under Section 14 of the Hindu Marriage Act, so as to permit the appellants to file application for divorce within the prohibited period of one year from the date of marriage.
We have perused the judgments relied on by the learned counsel for appellants. Primarily, the aspect of ‘exceptional hardship’ is to be considered with regard to the facts and pleadings in each case, and hence, we are of the view that the judgments relied on by the learned counsel would not support the appellants in this case.
For the aforesaid reasons, we dismiss this appeal, granting liberty to the appellants to file a fresh application under Section 13-B of the Hindu Marriage Act, 1955, after expiry of one year from the date of marriage. No order as to costs.
Miscellaneous applications pending, if any, shall stand closed.
R. SUBHASH REDDY, J ajr June 2014 A.SHANKAR NARAYANA, J
[1] Laws (Mad)-1956-11-12
[2] Laws (Cal)-1991-1-2
[3] 2003(3) KarLJ20