Divorce Lawyers in Delhi,India

29/06/2023

Leges Juris Associates Law firm.

29/06/2023

Office of Leges Juris Associates Law Firm.

08/05/2023

Mandatory or cooling period of Six Months in Mutual Consent Divorce u/s 13-B of HMA can be waived off.

Whether the period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by this Court in exercise of its jurisdiction under Article 142 of the Constitution?” This decision is rendered by a three judges’ bench.

The issues before this Constitution Bench, as adumbrated below, arise primarily from the order dated 12.05.2010 passed in T.P. (C) No. 899 of 2007, Neeti Malviya v. Rakesh Malviya, wherein a bench of two judges had doubted the view expressed in Anjana Kishore v. Puneet Kishore1 and Manish Goel v. Rohini Goel2 that this Court, in exercise of the power under Article 142 of the Constitution of India, cannot reduce or waive the period of six months for moving the second motion as stipulated in sub-section (2) to Section 13-B of the Hindu Marriage Act, 1956 3. Noticing that this Court, some High Courts and even family courts in some States had been dispensing with or reducing the period of six months for moving the second motion when there was no possibility whatsoever of the spouses cohabiting, the following question was referred to a three judges’ bench for a clear ruling and future guidance

However, the question was never decided, since T.P. (C) No. 899 of 2007 was rendered infructuous as the parties, subsequent to the order of reference, had dissolved their marriage by mutual consent.

In view of our findings on the first question, this question has to be answered in the affirmative, inter alia, holding that this Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.

(iii) Whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?

This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.

“In view of the decisions of the Hon’ble Court in the above cases, the view of the Hon’ble Court that divorce can be granted on the ground of “irretrievable break-down of marriage” even in the absence of such ground being contemplated by the Legislature may require consideration by the Constitution Bench. Similarly, the issue as to whether the period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by this Court in exercise of its jurisdiction under Article 142 of the Constitution also requires consideration by the Constitution Bench.”

Ref:

SHILPA SAILESH Vs VARUN SREENIVASAN
TRANSFER PETITION (CIVIL) NO. 1118 OF 2014

02/01/2023

When can the Waiving Period of Six Months for Mutual Divorce u/s 13-B of HMA be waived off.

The Hindu Marriage Act, 1955 provide, divorce through mutual consent as per section 13-B of the act. This provision requires that parties live separately for a year before presenting a petition for divorce and that parties take a minimum six-month ‘cooling off’ period before the decree of divorce could be granted.

in Amardeep Singh v. Harveen Kaur, the Supreme Court held that this provision was directory and not mandatory. Therefore, courts may waive the statutory period after considering the following:

Whether the cooling-off period has expired before the submission of the first motion;
Whether all efforts for mediation/ conciliation have failed and there is no likelihood of such efforts succeeding;
Whether the parties have settled all their differences, including alimony, child custody, etc;
Whether the cooling-off period will only prolong their agony.
The Supreme Court also held that parties may file an application seeking such waiver a week after their first motion seeking a divorce.

While this judgment advanced the interests of parties, family courts interpreted this judgment to mean that the cooling-off period could be waived only if all 4 factors were fulfilled. Particularly, this meant that the family courts would refrain from waiving it unless a period of 18 months of separation had elapsed, thus defeating the purpose of the judgment in Amardeep Singh.

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02/01/2023

Without adulterer as a party or co respondent in divorce petition can not be proved the adultery.

Section 11 in THE DIVORCE ACT, 1869

17 [ 11 Adulterer Or Adulteress To Be Co-Respondent. �On A Petition For Dissolution Of Marriage Presented By A Husband Or Wife On The Ground Of Adultery, The Petitioner Shall Make The Alleged Adulterer Or Adulteress A Co-Respondent, Unless The Petitioner Is Excused By The Court From So Doing On Any Of The Following Grounds, Namely:�

(A) That The Wife, Being The Respondent Is Leading The Life Of A Pr******te Or The Husband, Being Respondent Is Leading An Immoral Life And That The Petitioner Knows Of No Person With Whom The Adultery Has Been Committed;

(B) That The Name Of The Alleged Adulterer Or Adulteress Is Unknown To The Petitioner Although The Petitioner Has Made Due Efforts To Discover It;

(C) That The Alleged Adulterer Or Adulteress Is Dead.]

13/10/2022

When Wife can disentitled for maintenance on grounds of adultery.

The Punjab & Haryana High Court has observed that unless it is found that at the time of relevant point of time, the wife was actually living in adultery she is disentitled for maintenance.

“The maintenance can be declined, in the event, it is proved and established that the wife is living in adultery. “Living in adultery” means a continued adulterous conduct and not a single or occasional lapse. Solitary act of adultery or on isolated lapse of wife, will not disentitle the wife to claim the maintenance. The burden of proof of un-chastity is on the husband. Unless it is found that at the relevant point of time, the wife was actually living in adultery, she is not disentitled to claim maintenance. The material on record must indicate that the wife was living in adultery shortly before or after the petition of maintenance has been instituted.”

12/09/2021

When Mandatory Period of Six Months Can be Waived Off for Divorce by way of Mutual Consent.

Power to waived off mandatory Period of six Month for dissolution of Marriage by Hon’ble Supreme Court.

This Court noted that power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony. This view was reiterated in Poonam versus Sumit Tanwar.

However, the question is whether Section 13B(2) is to be read as mandatory or discretionary needs to be gone into. In Manish Goel (supra), this question was not gone into as it was not raised.

The Hon’ble Court observed :

that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11, Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11 AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt.

It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. The discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:

i) How long parties have been married?

ii) How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/conciliation?

vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

The given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

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 the 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.

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 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 versus Nanhku and ors.as follows:

“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 oft-quoted 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.’ ‘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.”

Thereafter, it has been noted by the Hon’ble Supreme Court that power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. The power was also exercised to put quietus to all litigations and to save the parties from further agony. It has been stated therein cooling off period of 6 months can be waived by exercising of power under Article 142 having considered the following grounds:

i) How long parties have been married?

ii) How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/conciliation?

vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
https://advocateprachi.wordpress.com/2021/09/04/when-mandatory-period-of-six-months-can-be-waived-off-for-divorce-by-way-of-mutual-consent/

Divorce by way of Mutual Consent  in India. The relevant Section 10A(1) & 2 of the Divorce Act, 1869 reads as under: 10A Dissolution of marriage by mutual consent. “(1) Subject to the prov…

20/04/2021

Allegations by a highly educated spouse against the Husband is amount to cruelty divorce granted to husband.

“For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.

The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh1, this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts.

“For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimoni…

20/04/2021

Divorced Wife Not Entitled To Right Of Residence Under Section 17 Domestic Violence Act.

In the matter of MR.RAMACHANDRA WARRIOR VS JAYASREE, the Hon”ble High of Kerla held tha in para no.23 of the judgments as under:-

23. On the above reasoning, we answer the reference as follows:
(i) A divorced wife would not be entitled to the right of residence conferred under S.17 under the Protection of Women from Domestic Violence Act, 2005, for reason of that right being available only to a woman in a domestic relationship.

(ii) A divorced wife would be included under the definition ‘aggrieved person’. A divorced wife occupying a shared household can be evicted only in accordance with law. A divorced wife can approach the Magistrate’s Court for an order under S.19 if she is residing in the shared household. The residence orders passed in such cases, would be subject to any proceeding for eviction in accordance with law, initiated by the husband, as contemplated under S.17(2).

(iii) There can be no order to put a divorced woman in possession of a shared household, from where she had separated long back, and the relief can only be of restraining dispossession.

In the matter of MR.RAMACHANDRA WARRIOR  VS  JAYASREE, the Hon”ble High of Kerla held tha in para no.23 of the judgments as under:-         &n…