Thursday, October 24, 2013

HOW TO GET A DIVORCE BEFORE THE PERIOD OF ONE YEAR IN INDIA.

Section 14 of Hindu marriage Act,1955.

"(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, 1[ 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 1[ 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 the 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 1[ 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 1[ expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed."


IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : HINDU MARRIAGE ACT

Judgment delivered on: 03.08.2011

MAT.APP.50/2011


Shri Arvind Kumar ……Appellant
Through: Ms.Deepika Marwaha, Advocate

 Vs.

Smt.Nirmala Bharti @ Neha ……Respondent
Through: None.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.:


1. By this appeal filed under Section 28 of the Hindu Marriage Act, the
appellant seeks to challenge the order dated 13.06.2011 passed by the Principal
Judge, Family Courts, Dwarka, New Delhi whereby the application of the appellant under
Section 14 of the Hindu Marriage Act was dismissed.

2. Assailing the said order, Ms.Deepika Marwaha, counsel appearing for the
appellant submits that the learned Family Court has passed the impugned order
completely ignoring the proviso of Section 14 of the Hindu Marriage Act and has also not
properly appreciated the ratio of judgments in the case of Anil Kumar Jain vs Maya Jain
(2009) 10 SCC 415, Manish Goel vs. Rohini Goel (2010) 4 SCC 393 and also in the case
of Mohan Saili & Sonali Singh Vs. Nil 2010 (175) DLT 259.

3. I have heard learned counsel for the appellant.

4. Nobody is present on behalf of the respondent despite service of notice.
The respondent is accordingly proceeded ex parte.

5. As per the facts disclosed in the present appeal, the appellant got married
to the respondent on 12.03.2011 according to Hindu rites and ceremonies. A petition for
divorce was filed by the appellant against the respondent on 08.06.2011 on the ground of
cruelty under Section 13 (1) (ia) of the Hindu Marriage Act. Along with the said petition,
the appellant had also filed an application under Section 14 of the Hindu Marriage Act
seeking leave of the court to file the said petition before the period of one year from the date of marriage. The said application of the appellant was dismissed by the learned trial
court vide the impugned order dated 13.06.2011.

6. The reason to dismiss the said application of the appellant taken by the
learned trial court is that it has no statutory power to condone the period of one year
prescribed under Section 14 of the said Act for filing the divorce petition. For arriving at
such a conclusion, the court has placed reliance on the two judgments of the Hon’ble
Supreme Court in the case of Manish Goel (supra) and Anil Kumar Jain (supra). This
Court is quite amazed to read the impugned order passed by the learned Principal Judge
as the learned Judge has not even bothered to just have a bare look at the said legal
provision i.e. Section 14 of the Hindu Marriage Act. Evidently, proviso of the said
section gives a right to the petitioner to move an application in accordance with the rules
framed by the High Court to seek leave of the court to file the petition before the expiry
of one year period from the date of the marriage on the ground of exceptional hardship or
on account of exceptional depravity on the part of the respondent and on the presentation
of such an application the discretion has been given to the court to allow such an
application even before the expiry of period of one year. In none of the said two
judgments referred to by the learned trial court, Section 14 of the Hindu Marriage Act
was under discussion. The aforesaid cases were dealing with the issue of waiver of
statutory period of six months as envisaged under Section 13-B (1) & (2) of the Hindu
Marriage Act. The learned trial court did not realize that the proviso of Section 14 itself
gives a remedy to the petitioner to seek waiver of the said period of one year and for
seeking such waiver the petitioner approaching the court has to satisfy one of the two
conditions i.e. (1) because of exceptional hardship to the petitioner or (2) because of
exceptional depravity on the part of the respondent. For better appreciation, Section 14 of
the Hindu Marriage Act is reproduced 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 the
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.”
 On a plain reading of the said section, it is apparent that the said section is on the statute
book with a specific purpose of preventing hasty recourse to judicial process for
dissolution of marriage and for the parties to aim at reconciliation and make effort to save
their marriage. However, it also cannot be disregarded that the proviso to the said section
gives the discretion to the court to allow the party to present a petition for divorce before
expiry of one year period from the date of marriage on being satisfied that the case is of
extreme depravity on the part of the respondent or extreme hardship to the petitioner.
Even sub section (2) of section 14 presupposes the grant of leave for presentation of
petition before the expiry of one year period. Hence, it cannot be said that the
presentation of petition of divorce before the expiry of one year is completely barred as
the proviso comes to the rescue of exceptional cases giving them room and it is a decision
to be made by the court on the merits of the case. Hence, the learned trial court fell in
grave error in proceeding on the premise that the petition cannot be permitted to be
presented before period of one year from the date of marriage.

7. There is no need to re-emphasise that once the provision of law itself
exists on any statute book, the same cannot be ignored by any of the Courts. The learned
trial court has clearly passed the impugned order in a perfunctory manner without even
caring to look at the said provision. The learned trial court has also committed yet another
mistake in placing reliance on the said two judgments of the Hon’ble Apex Court and
also of this Court in Mohan Saili (supra) which are totally inapplicable to the issue in
controversy, as the learned trial court was not dealing with the issue of granting waiver of
the statutory period of six months for entertaining second motion petition under Section
13-B (2) of the said Act, where the Apex Court in the said cases has taken a view that it is
only in the exercise of extra ordinary power under Article 142 of the Constitution of
India, the Supreme Court can grant the divorce under Section 13-B (2) of the Hindu
Marriage Act without even waiting for the statutory period of six months, while none of
the other courts can exercise such similar power. Although in the case of Neeti Malviya
Vs. Rakesh Malviya (2010) 6 SCC 413 the Supreme Court has taken a view that even it
also cannot waive the said statutory period of six months in the exercise of its extra
ordinary power under Article 142 of the Constitution of India and the matter is now
pending consideration before the larger Bench of the Supreme Court. Any how that is not
the subject matter of controversy here and as already discussed above, under the proviso
of Section 14 of the Hindu Marriage Act such an application seeking waiver of period of
one year as prescribed in the sub-section (1) of Section 14 of the Hindu Marriage Act can
be waived and dispensed with on the court being satisfied on the petitioner making out a
case for the grant of such waiver.

8. In the light of the above discussion, the present appeal deserves to be
allowed and the same is accordingly allowed. The impugned order dated 13.06.2011 is
set aside and the matter is remanded back to the learned Family Courts, Dwarka, New
Delhi. The learned trial court is directed to decide the application of the petitioner filed
by him under Section 14 of the Hindu Marriage Act on merit within a period of one
month from the date of this order.
 9. Parties are directed to appear before the learned trial court on 29th
August, 2011.

 Sd/-
KAILASH GAMBHIR, J 

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