Hon'ble Rajeev Misra,J.
1. The delay in filing this appeal having been condoned vide order of date passed on Delay Condonation Application, as requested by counsels for both the parties, we proceed to decide this appeal at this stage on the basis of paper book of the appeal itself since a short legal issue is involved in the matter.
2. This appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as "Act, 1984") has arisen from judgment and order dated 10.05.2019 passed by Principal Judge, Family Court, Ghaziabad in Original Suit No. 188 of 2019 rejecting application for entertaining Petition under Section 14 of Hindu Marriage Act, 1955 (hereinafter referred to as "Act, 1955") before expiry of one year from the date of marriage and returning plaint to plaintiff-appellant being pre-mature.
3. Facts in brief, giving rise to present appeal are that appellant, Smt. Dimple Tyagi and respondent, Himanshu Tyagi were married according to Hindu rituals on 09.02.2019. The marriage was solemnized at Ghaziabad. After one week of marriage, both the parties developed strained relations and differences as a result whereof appellant came to her parents' residence on 10.03.2019 and residing thereat since then. Both the parties ultimately found it difficult to continue in the matrimonial relationship with each other, hence resolved to seek divorce with mutual consent and for this purpose an application dated 09.05.2019 under Section 14 of Act, 1955 was filed by both the parties in the Court of Principal Judge, Family Court, Ghaziabad which was registered as Petition No. 188 of 2019. Since application was filed within one year of marriage, they also sought permission of Court below to entertain application before expiry of period of one year and allow mutual divorce in terms of compromise which was recorded in the form of an affidavit dated 05.04.2019, filed before Court below.
4. The application came up for consideration before Family Court on 10.05.2019. It rejected application seeking permission for filing divorce petition with mutual consent before expiry of one year on the ground that as per report of Munsarim, one year period has not elapsed and there is no sufficient reason to grant permission to the parties to move application under Section 14 of Act, 1955 before expiry of period of one year. The short order passed by Family Court reads as under:
^^i=koyh izLrqr gqbZA vaxhdj.k ds fcUnq ij lquk rFkk eqalfje dh vk[;k dk voyksdu fd;kA eaqlfje dh vk[;k ds vuqlkj i{kdkjksa dh 'kknh dks vHkh ,d o"kZ dh vof/kr iw.kZ ugha gqbZ gSA mHk; i{k dh vksj ls /kkjk 14 fgUnq fookg vf/kfu;e ds vUrxZr mDr ;kfpdk dks le; iwoZ nkf[ky djus dh vuqefr pkgh x;h gSA lquk o eqlfje vk[;k dk voyksdu fd;kA eqalfje vk[;kuqlkj i{kdkjksa dh 'kknh dks vHkh ,d o"kZ dh vof/k iw.kZ ugha gqbZ gSA mHk; i{k dh vksj ls le; iwoZ ;kfpdk nk;j djus dh vuqefr gsrq nk;j izkFkZuk&i= vUrxZr /kkjk& 14 fgUnw fookg vf/kfu;e mfpr vk/kkj uk gksus ds dkj.k fujLr fd;k tkrk gS ,oa okn izhEp;kSj gksus ds dkj.k fu;ekuqlkj okil fd;k tkrk gSA^^ "File produced.
Heard on the point of maintainability and perused the report of the Munsarim. As per the report of the Munsarim, a period of one year hasn't yet elapsed since the time of marriage of parties. Leave to file the said petition u/s 14 of the Hindu Marriage Act prior to expiration of the aforesaid period has been sought on behalf of both the parties.
Heard, and perused report of the Munsarim.
As per the report of the Munsarim, a period of one year hasn't yet elapsed since the time of marriage of parties. The application filed u/s 14 of the Hindi Marriage Act on behalf of both the parties seeking leave to file the petition prior to expiration of the aforesaid period is rejected as having no appropriate ground, and the suit is returned on account of it being premature." (English Translation by Court) (emphasis added)
5. Learned counsel for appellant contended that impugned order is wholly unreasoned, non speaking and has not considered the circumstances disclosed by both the parties in their application seeking leave of Court to entertain mutual divorce petition before expiry of one year under Section 14 of Act, 1955. Court below in a abrupt manner has simply rejected application observing that no sufficient ground is mentioned, without discussing or considering the same.
6. Point for determination to decide this appeal is "whether Court below was justified in rejecting application of appellant and respondent seeking leave of Court to entertain mutual divorce petition under Section 14 of Act, 1955 before expiry of one year of marriage?"
7. In order to consider this question, we may have a glance over Section 14 of Act, 1955 as amended by Act No. 68 of 1976 and it reads as under:
"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 misrepresentation 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." (emphasis added)
8. Section 14(1) in mandatory terms provides that no application for mutual divorce shall be competent to be entertained by any Court unless at the date of presentation of petition, one year has elapsed since the date of marriage. However, by means of Proviso, an exception has been provided by Legislature empowering Trial Court to allow a petition to be presented before one year has elapsed on an application made to it in this behalf if it is shown that the case is one of exceptional hardship to applicant or of exceptional depravity on the part of respondent. Sub-section (2) also provides that in disposing of an application for leave to present a petition for divorce before expiration of one year from the date of marriage Court shall have regard to interests of any children of the marriage and to the question whether there is an reasonable probability of reconciliation between the parties before expiration of the said one year. Thus rigour of sub-section (1) of Section 14 has been diluted by Proviso to Sub-section (1). Proviso therefore is in the nature of an exception and what has to be considered by Court below has been further clarified in Sub-section (2).
9. In the present case, since application was filed almost within three months from the date of marriage, and there was no issue (child) to the parties, hence Trial Court had to consider question of reasonable probability of reconciliation between the parties before expiration of one year. However, order quoted above clearly shows that nothing has been considered at all. Section 14 on the one hand intends to discourage married couple to seek divorce in a hurried manner and thus period of one yeas has been given so that difference or dispute, if any, between couple, on account of minor issues, the same may be sorted out and marriage may be saved by reconciliation between the parties with the passage of time. The period of one year has been thought appropriate for this purpose. However, Legislature has consciously given a right to either of couple, to move such application before one year has elapsed since the date of marriage, if it is established that the case is one of exceptional hardship to the petitioner or exceptional depravity on the part of opposite party. Even if leave is granted at initial stage, it can be recalled, if other party may show that it was obtained by misrepresentation or concealment of fact. Even if a decree is passed, Court may defer operation of such decree until after expiry of one year from the date of marriage or may even dismiss the petition without prejudice to move another application after expiration of period of one year upon the same or substantially same facts.
10. Looking to the language of Section 14 in its entirety, a Division Bench of Kolkatta High Court in Rabindra Nath Mukherjee V. Iti Mukherjee 1991 (1) CLJ 209 had taken a view that Section 14 itself is directory and not mandatory. The above view was followed by a learned Single Judge of Madras High Court in Indumathi Vs. Krishnamurthy (1998) 3 MLJ 435.
11. A Division Bench of Bombay High Court also examined this issue in Mr. X Vs. Mrs. Y 2001 MLJ 696. It observed that a bare reading of Section 14 shows that a petition can be presented before expiry of one year from the date of marriage by obtaining leave of Court. Section 14 though was enacted with object of discouraging young spouses to take recourse to legal proceedings for divorce in a frivolous and irresponsible manner but Section (2) provides exception, i.e., where petitioner has faced exceptional hardship or exceptional depravity at the hands of respondents. It is for Trial Court, who hears the application, to decide as per the circumstances, whether prima facie case of exceptional hardship or depravity has been made out. Legislature, therefore, has permitted relaxation in the period mentioned in Section 14(1) and, in our view, that should have been given due consideration by Court below. s
12. Looking to the history of Section 14, we find that initially it provided a period of three years from the date of marriage. It was amended in 1976 and period of three years was reduced to one year. Proviso to Section 14 is intended to relax one year's limit though in very exceptional cases. It, however, enables Court to exercise discretion to grant leave to present such petition before expiry of one year's limit in case of exceptional hardship to petitioner or exceptional depravity of respondent. Court while considering application to grant leave for entertaining application within one year, must not act in a casual pedantic manner but should look into the objective, intention and spirit of Legislation. In deciding an application to leave, no elaborate enquiry is required. It does not require to be considered as a preliminary trial. In our view, Court in exercise of discretion to grant leave, should take into consideration the petition and objection, if any.
13. In the present case, application was filed by both the parties and there was no objection. It is not the case that any fact was concealed by parties or whatever they had stated in the application was incorrect. In these facts and circumstances, the manner in which application has been dealt with by Court below, appears to be unfair, illegal and unreasonable. In fact, from the order which we have quoted above, we could not discern any application of mind and valid reason on the part of Court below for declining to grant leave.
14. The point for determination, formulated above, therefore, is answered in favour of appellant. Impugned judgment and order dated 10.05.2019 is accordingly held unsustainable.
15. In the result, appeal is allowed. Judgment and order dated 10.05.2019 passed by Principal Judge, Family Court, Ghaziabad in Petition No 188 of 2019 is hereby set aside.
16. Matter is remanded to Family Court to reconsider application dated 09.05.2019 and pass appropriate order in the light of discussions made above and in accordance with law, expeditiously.
17. No costs.
Order Date :- 19.12.2019 PS Court No. - 34 Civil Misc. (Delay Condonation) Application No. 2 of 2019 In Case :- FIRST APPEAL DEFECTIVE No. - 373 of 2019 Appellant :- Smt. Dimple Tyagi Respondent :- Himanshu Tyagi Counsel for Appellant :- Anshul Pathak Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. This is an application seeking condonation of delay in filing the appeal.
2. Sri Rahul Singh Dahiya, learned Counsel appearing for respondent stated that he has no objection if the Court condones delay in filing appeal after being satisfied for the cause being satisfactorily explained by applicant-appellant.
3. Having heard Sri Anshul Pathak, learned counsel for applicant-appellant, we are of the view that cause shown for delay is sufficient.
4. Condoned.
5. This application, accordingly, stands allowed.
6. Let appeal be registered with regular number and old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two number.
Order Date :- 19.12.2019 PS