Triple talaq unconstitutional, it violates rights of Muslim women in India

The Petitioners claim to have married as per muslim custom under personal law. First petitioner, i.e. the lady is aged about 23 years, whereas, second petitioner is aged about 53 years; both are illiterate. The document in support of their age is the Aadhar card. Both the petitioners are present in the Court, and have been identified by their counsel. In para-11 of the petition, it is averred that the second petitioner has contracted the present marriage after effecting instant talak (Triple Talaq) to his wife. The second petitioner admits before the Court that from his first marriage, he has two minor children, one residing with the wife and other with him. On a specific query as to when and why the instant divorce was effected, the second petitioner would state that to contract second marriage he has divorced his wife, no other reason is pleaded or stated before the Court.

 The question which disturbs the Court is should muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Whether the personal law can be amended suitably to alleviate their sufferings? The judicial conscience is disturbed at this monstrosity. The first wife has to live life for no fault of her but for the reason that her husband got attracted to a lady half of her age which is the reason for being divorced. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. In other Islamic State, where the husband must satisfy the court about the reasons for divorce.

However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates the law dealing with the wife's right to divorce. The divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'Talaq' or by 'Khola'. The statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" cannot be approved as the correct law. The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected. (Ref: Pathayi v. Moideen 1968 KLT 763; A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261; referred to with approval by the Supreme Court in Shamim Ara vs State Of U.P. & another : 2002 (7) SCC 518). The decision in Shamim Ara was rendered in 2002, wherein, the observation of the Division Bench judgment of the Kerala High Court was noticed and approved, which was rendered 20-30 years before.

Country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends.... "Law is dynamic and its meaning cannot be pedantic but purposeful." (Refer-- Bai Tahira Vs. Ali Hussain AIR 1979 SC 362).

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Read the Hon"ble Allahabad High Court Judgments:

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 58

Case :- WRIT - C No. - 51421 of 2016

Petitioner :- Smt. Hina And Another

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Sunil Kumar Dwivedi

Counsel for Respondent :- C.S.C.

Hon'ble Suneet Kumar,J.

Petitioners claim to have married as per muslim custom under personal law. First petitioner, i.e. the lady is aged about 23 years, whereas, second petitioner is aged about 53 years; both are illiterate. The document in support of their age is the Aadhar card. Both the petitioners are present in the Court, and have been identified by their counsel. In para-11 of the petition, it is averred that the second petitioner has contracted the present marriage after effecting instant talak (Triple Talaq) to his wife. The second petitioner admits before the Court that from his first marriage, he has two minor children, one residing with the wife and other with him. On a specific query as to when and why the instant divorce was effected, the second petitioner would state that to contract second marriage he has divorced his wife, no other reason is pleaded or stated before the Court.

The petitioners seek a direction to restrain the respondent police authorities and the third respondent, who is the mother of the lady from harassing them, further, to ensure security and safety of the petitioners and in particular to the first petitioner. It is alleged that the respondents are harassing the petitioners living as man and woman.

Learned counsel for the petitioner would submit that the petitioners are adult and are at liberty to choose their own partner on attaining age of majority within social framework of the society and the country, therefore, the petitioners cannot be deprived of their life and personal liberty except in accordance with the procedure established by law under Article 21 of the Constitution.

There can be no dispute to the proposition that is being advanced by learned counsel, nor difference in age is an issue, what is disturbing is that the instrument of instant divorce (Triple Talaq), in the facts of the present case, has been used for ulterior purpose for divorcing the wife. It is not being disputed that the first petitioner used to visit Mohalla, Tehsil Rokan Sarai, District Bulandshahar, where she met the second petitioner and fell in love, thereafter, decided to marry. First petitioner left her family and joined the company of second petitioner, consequently, the second petitioner decided to get rid of his first wife by divorcing her by pronouncing instant talaq.

The question which disturbs the Court is should muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Whether the personal law can be amended suitably to alleviate their sufferings? The judicial conscience is disturbed at this monstrosity. The first wife has to live life for no fault of her but for the reason that her husband got attracted to a lady half of her age which is the reason for being divorced. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. In other Islamic State, where the husband must satisfy the court about the reasons for divorce.

However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates the law dealing with the wife's right to divorce. The divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'Talaq' or by 'Khola'. The statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" cannot be approved as the correct law. The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected. (Ref: Pathayi v. Moideen 1968 KLT 763; A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261; referred to with approval by the Supreme Court in Shamim Ara vs State Of U.P. & another : 2002 (7) SCC 518). The decision in Shamim Ara was rendered in 2002, wherein, the observation of the Division Bench judgment of the Kerala High Court was noticed and approved, which was rendered 20-30 years before.

Country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends.... "Law is dynamic and its meaning cannot be pedantic but purposeful." (Refer-- Bai Tahira Vs. Ali Hussain AIR 1979 SC 362).

The purpose of Law in a modern secular State based upon the Constitution is to bring about social change. The muslim community comprise a large percentage of Indian population, therefore, a large section of citizen, in particularly women, cannot be left to themselves to be governed by archaic customs and social practise under the garb of personal law purportedly having divine sanction. The women of the community continue to suffer bias, deprived of the protection, they should otherwise get through provisions in the Constitution that provide for equality and non discrimination.

India is a nation in the making, geographical boundaries alone do not define a nation. It is to be adjudged, amongst others, on the parameter of overall human development and how the society in particular treat their women; leaving such a large population to the whims & fancy of personal law which perpetuate gender inequality and is regressive, is not in the interest of society and the country. It impedes and drags India from becoming a nation. The instant divorce (Triple Talaq) though has been deprecated and not followed by all sects of muslim community in the country, however, is a cruel and the most demeaning form of divorce practised by the muslim community at large. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quoran. Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution.

I would not like to say anything further for the reason that the Supreme Court is seized with the matter.

In Shamim Ara, a statement merely made in the pleadings "written statement" though unsubstantiated that the wife was divorced upon delivering copy of the written statement, was not accepted by the Supreme Court and the subsequent marriage contracted by the husband was held void.

In the facts and circumstances of the present case, the petition stands dismissed. The legality of the marriage/divorce and rights of parties is kept open.

No cost.

Order Date :- 5.11.2016

Mukesh Kr.

Forcing Husband to Get Separated From His Parents, Amounts To Cruelty and divorce granted

                                                                

 .   The question that requires to be answered first is as to  whether  the

averments, accusations and  character  assassination  of  the  wife  by  the

appellant husband in the written statement constitutes  mental  cruelty  for

sustaining the claim for divorce under Section 13(1)(i-a) of  the  Act.  The

position of law in this regard has come to  be  well  settled  and  declared

that  levelling  disgusting   accusations   of   unchastity   and   indecent

familiarity with a person outside wedlock and  allegations  of  extramarital

relationship is a  grave  assault  on  the  character,  honour,  reputation,

status as well as the health of the wife. Such aspersions of  perfidiousness

attributed to the wife, viewed in the context of  an  educated  Indian  wife

and judged by Indian conditions and standards would amount to worst form  of

insult and cruelty, sufficient by itself to  substantiate  cruelty  in  law,

warranting the claim of the wife being allowed. That such  allegations  made

in the written statement or suggested in the course of  examination  and  by

way of cross-examination satisfy the requirement of law has also come to  be

firmly laid down by this Court. On going through the  relevant  portions  of

such allegations, we find that no exception could be taken to  the  findings

recorded by the Family Court as well as the High Court. We  find  that  they

are of such quality, magnitude and consequence  as  to  cause  mental  pain,

agony and suffering amounting to the  reformulated  concept  of  cruelty  in

matrimonial law causing profound and  lasting  disruption  and  driving  the

wife to  feel  deeply  hurt  and  reasonably  apprehend  that  it  would  be

dangerous for her to live with a husband who was taunting her like that  and

rendered the maintenance of matrimonial home impossible.”

  Applying the said ratio to the facts of this case, we are inclined  to

hold that the unsubstantiated allegations levelled by  the  Respondent  wife

and the threats and attempt to commit suicide  by  her  amounted  to  mental

cruelty and therefore, the marriage deserves to be dissolved by a decree  of

divorce on the ground stated in Section 13(1)(ia) of the Act.

 Taking an overall  view  of  the  entire  evidence  and  the  judgment

delivered by the trial Court, we firmly believe that there was  no  need  to

take a different view than the one taken by the trial Court.  The  behaviour

of the Respondent wife appears to be terrifying  and  horrible.   One  would

find it difficult to live with such a person with tranquility and  peace  of

mind.  Such torture would adversely affect the life of the husband.   It  is

also not in dispute that the Respondent wife had left the matrimonial  house

on 12th July, 1995 i.e. more than 20 years back.  Though not on record,  the

learned counsel submitted that  till  today,  the  Respondent  wife  is  not

staying with the Appellant.  The daughter of the  Appellant  and  Respondent

has also grown up and according to the learned counsel, she  is  working  in

an IT company.  We have  no  reason  to  disbelieve  the  aforestated  facts

because with the passage of time, the daughter must have grown  up  and  the

separation of the Appellant and the wife must have also  become  normal  for

her and therefore, at this juncture it would not be  proper  to  bring  them

together, especially when the Appellant husband was treated  so  cruelly  by

the Respondent wife.

 We, therefore, quash and set aside the impugned judgment delivered  by

the High Court.  The decree of divorce dated 17th November, 2001  passed  by

the Principal Judge, Family Court, Bangalore  in  M.C.  No.603  of  1995  is

hereby restored.

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                             REPORTABLE

                       

  IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.3253 OF 2008

NARENDRA                            … APPELLANT

VERSUS

K. MEENA                          … RESPONDENT

                               J U D G M E N T

ANIL R. DAVE, J.

1.    This appeal has been filed by the Appellant husband, whose decree  for

divorce passed by the trial  Court  has  been  set  aside  by  the  impugned

judgment dated 8th March, 2006 passed by the  High  Court  of  Karnataka  at

Bangalore in Miscellaneous First Appeal No.171 of 2002 (FC).

  2.  The facts giving rise to the present appeal, in  a  nutshell,  are  as

under :

      The Respondent wife filed Miscellaneous  First  Appeal  under  Section

28(1) of the Hindu Marriage Act,  1955  (hereinafter  referred  to  as  “the

Act”) before the High Court as she was aggrieved by the judgment and  decree

dated 17th November, 2001, passed by  the  Principal  Judge,  Family  Court,

Bangalore in M.C. No.603 of 1995 under Section 13(1)(ia) of  the  Act  filed

by the Appellant husband seeking divorce.

3.    The  Appellant  husband  had  married  the  Respondent  wife  on  26th

February, 1992.  Out of the wedlock, a female child named Ranjitha was  born

on 13th November, 1993.  The case of the Appellant was that  the  Respondent

did not live  happily  with  the  Appellant  even  for  a  month  after  the

marriage.   The  reason  for  filing  the  divorce  petition  was  that  the

Respondent wife had become cruel because of  her  highly  suspicious  nature

and she used to level absolutely frivolous but serious  allegations  against

him regarding his character and more particularly  about  his  extra-marital

relationship.  Behaviour of the Respondent wife made life of  the  Appellant

husband miserable and it became impossible for the Appellant  to  stay  with

the Respondent  for  the  aforestated  reasons.   Moreover,  the  Respondent

wanted the Appellant to leave his parents and other family  members  and  to

get separated from them so that the Respondent can live  independently;  and

in that event it would become more torturous for the Appellant to stay  only

with the Respondent wife with  her  such  nature  and  behaviour.  The  main

ground was cruelty, as serious allegations were  levelled  about  the  moral

character of the Appellant to the  effect  that  he  was  having  an  extra-

marital affair with a maid, named Kamla.  Another important  allegation  was

that the Respondent would very often threaten the Appellant that  she  would

commit suicide.  In fact, on 2th July, 1995, she picked up  a  quarrel  with

the Appellant, went to the bathroom, locked the door from inside and  poured

kerosene on her body and attempted to commit suicide.  On getting  smell  of

kerosene coming from the bathroom, the  Appellant,  his  elder  brother  and

some of the neighbours broke open the door of  the  bathroom  and  prevented

the Respondent wife from committing suicide.   The  aforestated  facts  were

found to be  sufficient  by  the  learned  Family  Court  for  granting  the

Appellant a decree of divorce dated 17th November, 2001,  after  considering

the evidence adduced by both the parties.

4.    Being aggrieved by the judgment  and  decree  of  divorce  dated  17th

November, 2001, the Respondent wife had  filed  Miscellaneous  First  Appeal

No.171 of 2002 (FC), which has been allowed by the High Court on 8th  March,

2006, whereby the decree of divorce dated 17th November, 2001 has  been  set

aside.  Being aggrieved by the judgment and order passed by the High  Court,

the Appellant has filed this appeal.

5.    The learned counsel appearing for the Respondent was not present  when

the appeal was called out for hearing.  The matter was  kept  back  but  for

the whole day, the learned counsel for the Respondent did not appear.   Even

on an earlier occasion on 31st March, 2016, when the appeal was called  out,

the learned counsel appearing for the Respondent wife was  not  present  and

therefore, the Court  had  heard  the  learned  counsel  appearing  for  the

Appellant.

6.    The learned counsel appearing for the  Appellant  submitted  that  the

High Court had committed a grave error in  the  process  of  re-appreciating

the evidence and by setting aside the decree of divorce  granted  in  favour

of the Appellant.  He submitted that there was no  reason  to  believe  that

there was no cruelty on the part of the  Respondent  wife.   He  highlighted

the observations made by the Family Court and took us through the  evidence,

which was recorded before the Family Court.  He drew our  attention  to  the

depositions made by independent witnesses, neighbours of the Appellant,  who

had rescued the Respondent wife from committing  suicide  by  breaking  open

the door of the bathroom when the Respondent was on the verge of  committing

suicide by pouring kerosene on herself and by lighting a match  stick.   Our

attention was also drawn to  the  fact  that  serious  allegations  levelled

against the character of the  Appellant  in  relation  to  an  extra-marital

affair with a maid were absolutely baseless as no maid named Kamla had  ever

worked in the  house  of  the  Appellant.   It  was  also  stated  that  the

Respondent wife was insisting  the  Appellant  to  get  separated  from  his

family members and on 12th July, 1995  i.e.  the  date  of  the  attempt  to

commit  suicide,  the  Respondent  wife  deserted  the  Appellant   husband.

According to the learned counsel, the facts recorded by the  learned  Family

Court after appreciating the evidence  were  sufficient  to  show  that  the

Appellant was entitled to a decree of  divorce  as  per  the  provisions  of

Section 13(1)(ia) of the Act.

7.    We have carefully gone through the evidence  adduced  by  the  parties

before the trial Court and we tried to find out  as  to  why  the  appellate

Court had taken a different view than the one  taken  by  the  Family  Court

i.e. the trial Court.

8.    The High Court came to the conclusion that there was no cruelty  meted

out to the Appellant, which would enable him to get a decree of divorce,  as

per the  provisions  of  the  Act.   The  allegations  with  regard  to  the

character of the Appellant and the extra-marital affair  with  a  maid  were

taken very seriously by the Family Court, but the High Court  did  not  give

much importance to the false allegations made.  The constant  persuasion  by

the Respondent  for  getting  separated  from  the  family  members  of  the

Appellant and constraining the Appellant to live separately  and  only  with

her was also not considered to be of any importance by the High  Court.   No

importance was given to the incident with regard to  an  attempt  to  commit

suicide made by the Respondent wife.  On the contrary, it appears  that  the

High Court found some justification in the request made  by  the  Respondent

to live separately from the family of the Appellant husband.   According  to

the High Court, the trial Court did not appreciate  the  evidence  properly.

For the aforestated reasons, the High Court reversed  the  findings  arrived

at by the learned Family Court and set aside the decree of divorce.

9.    We do not agree with the manner  in  which  the  High  Court  has  re-

appreciated the evidence and has come to a different conclusion.

10.   With regard to the allegations of cruelty levelled by  the  Appellant,

we are in agreement with the findings of the trial  Court.   First  of  all,

let us look at the incident with regard to an attempt to commit  suicide  by

the Respondent.   Upon  perusal  of  the  evidence  of  the  witnesses,  the

findings arrived at by the trial Court to the  effect  that  the  Respondent

wife had locked herself in the bathroom and had poured kerosene  on  herself

so  as  to  commit  suicide,  are  not  in  dispute.   Fortunately  for  the

Appellant, because of the noise and disturbance, even the neighbours of  the

Appellant rushed to help and the door of the bathroom was  broken  open  and

the Respondent was saved.  Had she been successful in her attempt to  commit

suicide, then one can  foresee  the  consequences  and  the  plight  of  the

Appellant because in that  event  the  Appellant  would  have  been  put  to

immense difficulties because of the legal provisions.  We  feel  that  there

was no fault on the part of the Appellant nor was there any reason  for  the

Respondent wife to make an attempt to  commit  suicide.   No  husband  would

ever be comfortable with or tolerate such an act by  his  wife  and  if  the

wife succeeds in committing  suicide,  then  one  can  imagine  how  a  poor

husband would get entangled into the clutches of law, which would  virtually

ruin his sanity, peace of mind, career and probably his  entire  life.   The

mere idea with regard to facing  legal  consequences  would  put  a  husband

under tremendous stress.  The thought itself is distressing.  Such a  mental

cruelty could not have  been  taken  lightly  by  the  High  Court.  In  our

opinion, only this one event was sufficient for  the  Appellant  husband  to

get a decree of divorce on the ground of cruelty.  It  is  needless  to  add

that such threats  or  acts  constitute  cruelty.   Our  aforesaid  view  is

fortified by a decision of this Court in  the  case  of  Pankaj  Mahajan  v.

Dimple @ Kajal (2011) 12 SCC  1,  wherein  it  has  been  held  that  giving

repeated threats to commit suicide amounts to cruelty.

11.   The Respondent wife wanted the Appellant to  get  separated  from  his

family.  The evidence shows that the family was  virtually  maintained  from

the income of the  Appellant  husband.  It  is  not  a  common  practice  or

desirable culture for a Hindu  son  in  India  to  get  separated  from  the

parents upon getting married at the instance of the  wife,  especially  when

the son is the only earning member in the family.  A  son,  brought  up  and

given education by his parents, has a moral and  legal  obligation  to  take

care and maintain the parents, when they  become  old  and  when  they  have

either no income or have a meagre income.  In  India,  generally  people  do

not subscribe to  the  western  thought,  where,  upon  getting  married  or

attaining majority, the son gets  separated  from  the  family.   In  normal

circumstances, a wife is expected to be  with  the  family  of  the  husband

after the marriage.  She becomes integral to and forms part  of  the  family

of the husband and normally  without  any  justifiable  strong  reason,  she

would never insist that her husband should get  separated  from  the  family

and live only with her.  In the  instant  case,  upon  appreciation  of  the

evidence, the trial Court came to the conclusion that  merely  for  monetary

considerations, the Respondent wife wanted  to  get  her  husband  separated

from his family.  The averment of the Respondent was to the effect that  the

income of the Appellant was also spent  for  maintaining  his  family.   The

said  grievance  of  the  Respondent  is  absolutely  unjustified.   A   son

maintaining his parents is absolutely normal in Indian  culture  and  ethos.

There is no other reason for which the Respondent wanted  the  Appellant  to

be separated from the family - the sole reason was to enjoy  the  income  of

the Appellant.  Unfortunately, the  High  Court  considered  this  to  be  a

justifiable reason. In the opinion  of  the  High  Court,  the  wife  had  a

legitimate expectation to see that the income of her  husband  is  used  for

her and not for the family members of the Respondent  husband.   We  do  not

see any reason to justify the said  view  of  the  High  Court.   As  stated

hereinabove, in a Hindu society, it is a pious  obligation  of  the  son  to

maintain the parents.  If a wife  makes  an  attempt  to  deviate  from  the

normal practice and normal  custom  of  the  society,  she  must  have  some

justifiable  reason  for  that  and  in  this  case,  we  do  not  find  any

justifiable reason, except monetary consideration of  the  Respondent  wife.

In our opinion, normally, no husband would tolerate this and  no  son  would

like to be separated from his old parents and other family members, who  are

also dependent upon his income.  The persistent  effort  of  the  Respondent

wife to constrain the Appellant to be separated from  the  family  would  be

torturous for the husband and in our opinion,  the  trial  Court  was  right

when it came to the conclusion that this constitutes an  act  of  ‘cruelty’.

12.   With regard to the allegations  about  an  extra-marital  affair  with

maid named Kamla, the re-appreciation of the  evidence  by  the  High  Court

does not appear to be correct.  There is sufficient evidence to  the  effect

that there was  no  maid  named  Kamla  working  at  the  residence  of  the

Appellant.  Some averment with regard to some relative has been relied  upon

by the High Court to come to a conclusion that there was a lady named  Kamla

but the High Court has  ignored  the  fact  that  the  Respondent  wife  had

levelled  allegations  with  regard  to  an  extra-marital  affair  of   the

Appellant with the maid and not with someone else.  Even if there  was  some

relative named Kamla,  who  might  have  visited  the  Appellant,  there  is

nothing to substantiate the allegations  levelled  by  the  Respondent  with

regard to an extra-marital affair.  True, it is very difficult to  establish

such allegations but at the same time, it is equally true that to suffer  an

allegation pertaining to one’s character of having an  extra-marital  affair

is quite torturous for any person – be it a husband  or  a  wife.   We  have

carefully gone through the evidence but  we  could  not  find  any  reliable

evidence to show  that  the  Appellant  had  an  extra-marital  affair  with

someone.  Except for the baseless and reckless  allegations,  there  is  not

even the slightest evidence that would  suggest  that  there  was  something

like an affair of the Appellant with the maid named by the  Respondent.   We

consider levelling of  absolutely  false  allegations  and  that  too,  with

regard to an extra-marital life to be quite serious and that can  surely  be

a cause for metal cruelty.

13.   This Court, in the  case  of  Vijaykumar  Ramchandra  Bhate  v.  Neela

Vijaykumar Bhate, 2003 (6) SCC 334 has held as under:-

“7.   The question that requires to be answered first is as to  whether  the

averments, accusations and  character  assassination  of  the  wife  by  the

appellant husband in the written statement constitutes  mental  cruelty  for

sustaining the claim for divorce under Section 13(1)(i-a) of  the  Act.  The

position of law in this regard has come to  be  well  settled  and  declared

that  levelling  disgusting   accusations   of   unchastity   and   indecent

familiarity with a person outside wedlock and  allegations  of  extramarital

relationship is a  grave  assault  on  the  character,  honour,  reputation,

status as well as the health of the wife. Such aspersions of  perfidiousness

attributed to the wife, viewed in the context of  an  educated  Indian  wife

and judged by Indian conditions and standards would amount to worst form  of

insult and cruelty, sufficient by itself to  substantiate  cruelty  in  law,

warranting the claim of the wife being allowed. That such  allegations  made

in the written statement or suggested in the course of  examination  and  by

way of cross-examination satisfy the requirement of law has also come to  be

firmly laid down by this Court. On going through the  relevant  portions  of

such allegations, we find that no exception could be taken to  the  findings

recorded by the Family Court as well as the High Court. We  find  that  they

are of such quality, magnitude and consequence  as  to  cause  mental  pain,

agony and suffering amounting to the  reformulated  concept  of  cruelty  in

matrimonial law causing profound and  lasting  disruption  and  driving  the

wife to  feel  deeply  hurt  and  reasonably  apprehend  that  it  would  be

dangerous for her to live with a husband who was taunting her like that  and

rendered the maintenance of matrimonial home impossible.”

14.   Applying the said ratio to the facts of this case, we are inclined  to

hold that the unsubstantiated allegations levelled by  the  Respondent  wife

and the threats and attempt to commit suicide  by  her  amounted  to  mental

cruelty and therefore, the marriage deserves to be dissolved by a decree  of

divorce on the ground stated in Section 13(1)(ia) of the Act.

15.   Taking an overall  view  of  the  entire  evidence  and  the  judgment

delivered by the trial Court, we firmly believe that there was  no  need  to

take a different view than the one taken by the trial Court.  The  behaviour

of the Respondent wife appears to be terrifying  and  horrible.   One  would

find it difficult to live with such a person with tranquility and  peace  of

mind.  Such torture would adversely affect the life of the husband.   It  is

also not in dispute that the Respondent wife had left the matrimonial  house

on 12th July, 1995 i.e. more than 20 years back.  Though not on record,  the

learned counsel submitted that  till  today,  the  Respondent  wife  is  not

staying with the Appellant.  The daughter of the  Appellant  and  Respondent

has also grown up and according to the learned counsel, she  is  working  in

an IT company.  We have  no  reason  to  disbelieve  the  aforestated  facts

because with the passage of time, the daughter must have grown  up  and  the

separation of the Appellant and the wife must have also  become  normal  for

her and therefore, at this juncture it would not be  proper  to  bring  them

together, especially when the Appellant husband was treated  so  cruelly  by

the Respondent wife.

16.   We, therefore, quash and set aside the impugned judgment delivered  by

the High Court.  The decree of divorce dated 17th November, 2001  passed  by

the Principal Judge, Family Court, Bangalore  in  M.C.  No.603  of  1995  is

hereby restored.

17.   The appeal is, accordingly, allowed with no order as to costs.

                                                             .…………………………….J.

                                        (ANIL R. DAVE)

                                                             ……………………………..J.

                               (L. NAGESWARA RAO)

NEW DELHI

OCTOBER 06, 2016.

waiting period of six months in mutual consent divorce under sec.13-B(1) of Hindu Marriage Act 1955 waive off by Supreme Court.

The respondent is scheduled to leave the country by 29.04.2016 and it is not possible for her to return to India within six months or in the near future, it is submitted.

Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties. We do so.

In the above circumstances, HMA No.272 of 2016 filed on 29.03.2016 before the Ld. Principal Judge, Family Courts, Tiz Hazari District Courts, Delhi under Section 13-B(1) of the Hindu Marriage Act, 1955 is allowed. The statutory period of six months is waived and the marriage between the parties is dissolved.

---

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 4490 OF 2016

(Arising out of SLP (c) No.12161 of 2016)

NIKHIL KUMAR                                       Appellant

VERSUS

RUPALI KUMAR                                          Respondent

J U D G M E N T

KURIAN,J.

1. Leave granted.

2. The appellant and respondent have filed the petition under Section 13- B(1) of the Hindu Marriage Act, 1955 before the Family Court (Principal Judge, Family Court, Tiz Hazari District Courts), Delhi. The parties were married on 07.02.2011 according to the customary rights. It is submitted that they have not been able to workout their marriage as husband and wife since day one. For the last around five years, most of the time they have been living separately and their marriage reached a breaking point more than a year back. Both the parties, after giving serious thought on the entire consequences of their decision, have taken a conscious decision to part and accordingly they have filed a petition before the Family Court for divorce on mutual consent on 29.03.2016. The Family Court granted the First Motion on 01.04.2016 and now, the matter is posted in the month of October, 2016.

3. The respondent has made a travel plan to move to New York on 29.04.2016 seeking a job and resettlement in life, after a long period of traumatic experiences of her married life as stated in the affidavit.

4. In the above circumstances, the appellant has filed the present appeal praying for waving the six months’ waiting period required under Section 13-B(2) of the Hindu Marriage Act, 1955, invoking our jurisdiction under Article 136 read with Article 142 of the Constitution of India.

5. The respondent has appeared in person. She was directed to file an affidavit before this Court. The respondent in the affidavit has endorsed the submission that they were not happy ever since their marriage in 2011. It is stated that with the set-back of a broken marriage, the respondent needs a change in environment and thus, she has proposed to move to New York and it would be difficult for her to get back to India after six months or even in the near future. It is further stated that both of them have realized the consequences of their decision and they have taken the decision out of their free will and without any undue influence or coercion.
6. Both the parties have appeared before the Court. The appellant was born in the year 1984, and is graduate in commerce. He is working as senior manager in a private firm. The respondent was born in the year 1982 and she also is a graduate.
7. The respondent is scheduled to leave the country by 29.04.2016 and it is not possible for her to return to India within six months or in the near future, it is submitted.
8. Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties. We do so.
9. In the above circumstances, HMA No.272 of 2016 filed on 29.03.2016 before the Ld. Principal Judge, Family Courts, Tiz Hazari District Courts, Delhi under Section 13-B(1) of the Hindu Marriage Act, 1955 is allowed. The statutory period of six months is waived and the marriage between the parties is dissolved.
10. The Registry to communicate a copy of this judgment to the Family Court forthwith.
11. The appeal is allowed as above. No order as to costs.

…………………..J (KURIAN JOSEPH) …………………..J

(ROHINTON FALI NARIMAN)

NEW DELHI APRIL 27, 2016

Divorce Petition can not be dismissed on basis of mistake in petition.

13(i) (a) of the Hindu Marriage Act was sought to be dismissed on the ground that the marriagebetween the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act.

 The question which is arising for consideration is as to whether the court can reject an application for dismissal of the divorce petition which has been filed under the HinduMarriage Act on the ground of cruelty and desertion when admittedly the parties have contracted a marriage under the Special Marriage Act and yet give a direction suo motu to the respondent to amend the petition.

 Therefore, the same District Judge dealing with the divorce petition under the HinduMarriage Act as well as Special Marriage Act in my view does not lack the jurisdiction to entertain the application of the respondent.

21. It may also be stated that objections with regard to the jurisdiction so far as the subject matter is concerned, ought to have been taken by the respondent at the earliest possible stage to avoid wastage of time and energy of both the litigants as well as of the court staff. In the instant case, the matter has been filed in 2005 the evidence by way of affidavit has been filed in 2008 and the cross examination of the witness is yet to be completed. The matter has been pending now in courts for the last more than a decade and, therefore, to dismiss the divorce petition on the ground of lack of inherent jurisdiction when the same is due to an inadvertent drafting error which can be corrected by an amendment simplicitor, would be to take a hyper technical view by this court when the thrust of the concern in matrimonial matters should be the question of grant/non grant of divorce and other ancillary reliefs to the parties.

38. Mr. Jai Bansal, the learned counsel for the respondent is concerned, has primarily placed reliance on the two judgments of the Bombay High Court and Guwahati High Court. These are Anandrao, s/o Marotrao Kharabe vs. Madhuri posing herself to be w/o Anandrao Kharabe &Anr.; 2009 (111) Bombay LR 832 and Anupam Das vs. Smt. Mampi Das; AIR 2008 Gau 3.

. So far as Anupam Das's case (supra) is concerned, the same is distinguishable on the premise that this was a case which had come up before the High Court of Gauhati when a petition underArticle 227 of the Constitution of India was filed challenging an interlocutory order passed underSection 25 of the Hindu Marriage Act, 1955 and Section 20 (3) of the Hindu Adoptions andMaintenance Act, 1956 by the learned District Judge, Shillong directing the revision-petitioner to pay a sum of Rs.1,000/- per month to the respondent and another sum of Rs.500/- per month to her minor child for the purpose of maintenance. One of the grounds for challenging the maintenance order was that the marriage between the petitioner and the respondent/wife was solemnized and duly registered under the Special Marriage Act, 1954 and the learned District Judge had no inherent jurisdiction to entertain and proceed with the divorce petition filed by the respondent under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 and therefore, the application under Section 25 of the Hindu Marriage Act which was for permanent alimony which is to be granted at the time of divorce was itself not maintainable. The Hon'ble High Court did not accept this plea of the petitioner for setting aside the order by giving the reasoning that there is no dispute that the learned District Judge, Shillong had the jurisdiction to entertain the divorce petition, both under the provisions of Hindu Marriage Act and Special MarriageAct. It was also noted that incidentally, cruelty which was a ground for filing a petition for grant of divorce under the Hindu Marriage Act was also a ground for divorce under the SpecialMarriage Act under Section 27 (1) (d). It was also taken note that Section 36 of the SpecialMarriage Act provides interim maintenance and a similar provision for ad interim maintenance is made under Section 38 for the minor child. The High Court observed that the learned counsel for the petitioner was not able to show that the petition filed by the respondent for grant ofdivorce on the ground of cruelty under Section 27 (1) (d) of the Special Marriage Act did not have requisite cause of action. One important fact which may be noticed in that case is that although the marriage was performed under Special Marriage Act and got registered on 28.08.2002 but just after two months on 03.10.2002 marriage was solemnized again at Kamakhya Temple, Gauhati according to Hindu rites and ceremonies. It was in this background that the Hon'ble High Court had observed that the order with regard to grant of maintenance by the learned District Judge, Shillong had not committed any illegality or impropriety in passing the order of maintenance. At the same time, the High Court observed that henceforth, the petition for grant of divorce which has been filed under the Hindu Marriage Act shall be entertained as an application filed under the Special Marriage Act.

. As against this, in the present case, the marriage originally had taken place according toHindu Rights and Ceremonies in the year 1986. The said marriage was dissolved by a decree ofdivorce from a competent court on 02.06.1988. The parties had again got married under theSpecial Marriage Act and once they got married under Special Marriage Act, therefore, their conduct with regard to the grant of divorce or relationship would be covered under the SpecialMarriage Act only. The respondent filed a petition for divorce under the Hindu MarriageAct. It is only incidental that some of the grounds which are available in Hindu Marriage Actmay be available as a ground for divorce under the Special Marriage Act or under the other matrimonial laws like Christian Marriage Act, but that would not be a ground to convert a petition which is filed under one enactment to a petition under another enactment as that would be resulting in chaos because then there will be no end to the plea which will be available to a party though the marriage had taken place in a particular law but the ground of divorce is available in the different law and that is why the petition is maintainable. Therefore, this judgment in my considered opinion does not help the respondent in any manner.

------------------------------------------------------------------------------------------------------

HIGH COURT OF DELHI AT NEW DELHI

+                                 MAT. Appeal No.32/2009

                                             Decided on : 28th May, 2015

SUMAN KUNDRA                                          ...... Appellant
           Through:                 Mr. A.S. Chandhiok, Senior Advocate
                                    with Mrs. Avnish Ahlawat & Ms. Rashmi
                                    Chopra, Advocates.

                         Versus

SANJEEV KUNDRA                                        ...... Respondent
            Through:                Mr. Jai Bansal & Mr. Nath Mohan
                                    Prafulla, Advocates.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is an appeal filed under Section 28 read with Article 227 of the Constitution of India by the appellant against the order dated 16.3.2009 by virtue of which the application of the appellant for dismissal of the petition for divorce filed by the respondent herein under Section 13

(i) (a) of the Hindu Marriage Act was sought to be dismissed on the ground that the marriage between the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act.

2. The question which is arising for consideration is as to whether the court can reject an application for dismissal of the divorce petition which has been filed under the Hindu Marriage Act on the ground of cruelty and desertion when admittedly the parties have contracted a marriage under the Special Marriage Act and yet give a direction suo motu to the respondent to amend the petition.

3. Both Mr. Chandhiok, the learned senior counsel for the appellant and Mr. Jai Bansal, the learned counsel for the respondent have vehemently canvassed for their point of view with number of judgments but before dealing with their respective submissions, it may be pertinent here to given a brief background of the case.

4. The respondent/petitioner filed a petition against the appellant/wife for grant of divorce underSection 13 (i) (a) and (i) (b) of the Hindu Marriage Act on the grounds of cruelty and desertion. It was not disputed that the parties are Hindu by religion and got married on 29.10.1986 as per Hindu rites and ceremonies. The marriage though a love marriage could not continue for very long and the relationship soured as a consequence of which the marriage got dissolved by a decree of divorce on 2.6.1988.

5. After the decree of divorce having been passed, the parties were drawn against each other once again and they decided to get re-married for second time. This time on 3.5.1990, the marriage was solemnized before a Marriage Officer, Tis Hazari Court, Delhi under the Special Marriages Act. The parties could not reconcile their inherent differences and the husband on 21.07.2005 filed a petition for divorce on the ground of cruelty and desertion under Section 13 (i) (a) and (i) (b) of the Hindu Marriage Act.

6. The appellant contested the petition and filed her written statement on 8.9.2005. Issues were framed on 27.9.2008 and the case was set down for trial. The respondent/petitioner filed his affidavit of evidence on 28.11.2008 and 7.1.2009 and the case was adjourned to 11.2.2009.

7. On 9.2.2009, the appellant/defendant filed an application under Section 151 CPC seeking dismissal of the petition on the ground that a false averment has been made in the petition with regard to the status of the respondent/petitioner and further that the divorce petition has been filed under HMA while as admittedly the marriage has taken place under Special Marriage Act. Therefore, the petition on the face of it was not maintainable.

8. The respondent/petitioner filed his reply to the application and stated that the petition for divorce cannot be dismissed on account of the error which has crept in the petition with regard to the mentioning of the provision for grant of divorce which admittedly was cruelty and the said ground of cruelty apart from being a ground under Section 13 (1) (a) of the HMA is also a ground for grant of divorce under Section 27 of the Special Marriage Act. It was also contended that the learned ADJ who is to try the divorce petition under the HMA is also to try the divorce petition under the Special Marriage Act and therefore, this being only a technical objection should not come in the way of processing and dealing with the petition on merits.

9. The learned ADJ after hearing the arguments of both the sides dismissed the application of the appellant by holding that he has the jurisdiction to entertain the petition for divorce both under the HMA as well as Special Marriage Act and the cruelty being a ground for divorce under both the Acts, therefore, the petition could continue as there is a cause of action for the same. However, while dismissing the application, the learned Judge distinguished the judgment relied upon by the appellant in Harshad Chiman Lal Modi vs. DLF Universal & Anr.; (2005) 7 SCC 791, which was relied upon by them in order to contend that a forum which did not have the jurisdiction could not entertain the same. These judgments were distinguished by the learned ADJ by observing that they related to territorial jurisdiction and not to subject-matter jurisdiction which admittedly the ADJ had in the instant case. The learned ADJ in support of his reasoning relied upon two judgments cited by the learned counsel for the respondent/petitioner to contend that it had the jurisdiction because the ground of cruelty was a ground for which a provision existed as a ground for divorce under both the enactments. The case relied upon are titled Anupam Das v.Smt. Mampi Das; AIR 2008 Gau (3) 2007 and Prabir Chandra Chatterjee vs. Kaveri Guha Chatterjee; AIR 1987 Calcutta 191.

10. I have heard both Mr. Chandhiok, the learned senior counsel for the appellant as well as Mr. Jai Bansal, the learned counsel for the respondent.

11. Mr. Chandhiok, the learned senior counsel for the appellant has made the following submissions :-

12. The first contention is that if the marriage is solemnized under the Special Marriage Act, then one cannot invoke the jurisdiction of the court exercising the powers under Hindu Marriage Actas in that case, the court will not have the jurisdiction over the subject-matter unless and until it is not a family court under the Family Court Act. In order to support his submissions, he has placed reliance on Stephen Joshus & Anr. Vs. JS. Kapoor; (1995) 58 DLT 57; Mohan Raj vs. Violet Chandra; (1993) 1 ALL India HLR 108; and D. Jacintha Kamath vs. K. Padmanabha Kamath; AIR 1992 Kant 372.

13. In Stephen Joshus's case (supra), the question which had arisen was whether a Christian married under the Christian Marriage Act could be granted divorce on the basis of mutual consent under Special Marriage Act. The submission which was made before the Hon'ble High Court of Delhi was that since under the Special Marriage Act, 1954, mutual consent is a ground of divorce it is equally applicable to all the citizens of India irrespective of the fact that as to whether the marriage is solemnized under the same or other provisions of law. Section 28 of the Christian Marriage Act does not create a bar on grant of divorce by mutual consent.

14. This contention was negatived by the High Court stating that the divorce can be granted only on the grounds which are available under a particular act under which parties have got married meaning thereby that since parties were married under the Christian Marriage Act and under the said Act there was no provision for grant of divorce by mutual consent and therefore their marriage could not be dissolved by mutual consent. Similar is the judgment in Mohan Raj's case (supra).

15. In D. Jacintha Kamath's case (supra) the question which had arisen was whether a Christian marriage where one of the parties is Hindu can be dissolved by a decree of divorce under Section 13 of HMA at the instance of either of the parties. This contention was also negated by Karnataka High Court on the ground that for the purpose of dissolution of marriage under Hindu Marriage Act the parties have to be necessarily Hindus and married according to Hindu rites and ceremonies, customary or ones which are prescribed under the said Act.

16. None of the aforesaid three judgments, in my view, are helpful to the petitioner because the ground on the basis of which the divorce is sought in the instant case is cruelty and/or desertion under the Hindu Marriage Act which are also the grounds under the Special Marriage Act.Therefore, the question which arises for consideration is whether a divorce petition under Section 13 of HMA filed by one of the parties both being Hindu but married under Special Marriage Act, be dismissed merely on the premise that the same ought to have been filed under Section 27 of Special Marriage Act.

17. In the instant case, the learned Trial Judge had rejected the application of the appellant/wife for dismissal of the divorce petition holding that such a petition for divorce was maintainable and the only mistake which had taken place was instead of mentioning the relevant provisions for grant of divorce under the Special Marriage Act, the provisions of the Hindu Marriage Act were mentioned.

18. It has been contended by Mr. Chandhiok that no doubt under the Family Courts Act, it is the same Family Judge who deals with the personal laws and the matrimonial laws of all the religions, but before the constitution of the family courts as this is an old case, the jurisdiction is vested with the District Judge and it is not necessary that the same District Judge may be assigned the task. Therefore, there will be lack of jurisdiction to entertain the petition by the District Judge which passed the impugned order.

19. What is involved in the present case is special jurisdiction and admittedly it cannot be said to be inherent lack of jurisdiction to entertain a matter with regard to the special jurisdiction that a matter pertaining to personal law or a law pertaining to grant of divorce by the Trial Judge. The reason for this is that the Trial Judge under the Hindu marriage as well as the Special Marriage Act has to be the District Judge and incidentally in the instant case, it is the same additional District Judge who is to decide the application for amendment both under the Special Marriage Act and the Hindu Marriage Act.

20. Therefore, the same District Judge dealing with the divorce petition under the Hindu Marriage Act as well as Special Marriage Act in my view does not lack the jurisdiction to entertain the application of the respondent.

21. It may also be stated that objections with regard to the jurisdiction so far as the subject matter is concerned, ought to have been taken by the respondent at the earliest possible stage to avoid wastage of time and energy of both the litigants as well as of the court staff. In the instant case, the matter has been filed in 2005 the evidence by way of affidavit has been filed in 2008 and the cross examination of the witness is yet to be completed. The matter has been pending now in courts for the last more than a decade and, therefore, to dismiss the divorce petition on the ground of lack of inherent jurisdiction when the same is due to an inadvertent drafting error which can be corrected by an amendment simplicitor, would be to take a hyper technical view by this court when the thrust of the concern in matrimonial matters should be the question of grant/non grant of divorce and other ancillary reliefs to the parties.

22. The learned senior counsel's arguments flow from the assumption as if the divorce under theSpecial Marriage Act and the divorce petition under HMA are dealt with by two different authorities. Both the powers are with the same District Judge.

23. I do not agree with this submission of the learned senior counsel for the appellant for the simple reason as stated above that in the instant case it is the same District Judge who was hearing the objections for grant of divorce, restitution of conjugal rights as well as grant of maintenance and other peripheral orders.

24. Therefore, this contention of the learned senior counsel in view of the aforesaid does not persuade me to accept his argument.

25. The second submission is that wrong mentioning of provision is different from invoking jurisdiction under a different statute. Reliance in this regard is placed on Jeet Mohinder Singh vs. Harminder Singh; (2004) 6 SCC 256.

26. In Jeet Mohinder Singh's case (supra), the Supreme Court has dealt with the purpose of mentioning the correct provision for filing the application and it was held as under:

6. Though the nomenclature of an application is really not material and the substance is to be seen, yet it cannot be said that a party shall be permitted to indicate any provision and thereafter contend that the nomenclature should be ignored. Duty is cast on the parties to properly frame their applications and indicate the provisions of law applicable for making the application. Nomenclature may not be normally material. But there is a purpose in indicating the nomenclature in a clear and precise manner. Though it is the substance and not the form which is material but as indicated above, that cannot be a reason to quote an inappropriate provision of law and then say "Don't look at the nomenclature". The care and caution which is required to be taken cannot be diluted to absurd limits. The care and caution required to be observed while making an application in the highest Court of the State are sadly missing in this case. Order XVIII Rule 17 deals with recall and examination of a witness and reads as follows:

"The Court may at any stage of a suit recall any witness who has been examined andmay subject to the law of evidence for the time being in force put such questions to him as the Court thinks fit."

27. In the aforesaid case, although the application for recalling and examination of a witness was filed but wrong provision of law was mentioned. The Supreme Court although impressed upon correct mentioning of the provisions of law for filing the application, but on merits of the matter as the application was filed under a wrong provision, the aggrieved party was permitted to file a fresh application under Order 18 Rule 17 which if it chose to do and the same was to be dealt with by the trial court meaning thereby that although the court impressed upon the mentioning of the correct provisions of law for the purpose of filing of an application or for that matter which would applicable to a petition also, but it did not oust the aggrieved party in the said case only on technicalities of not granting it an opportunity to rectify the deficiency by filing a fresh application under the relevant provision.

28. There is no quarrel with the proposition of law laid down in the said judgment that correct provision of law must be mentioned in the application or the petition, but at the same time in case a correct provision of law has not been mentioned, a party be that in an application or a petition, the said petitioner/applicant should not be made to suffer on account of these inadvertent technical errors which have cropped up. Further, much would depend of the case on the nature of the case, the stage of the case as well as the nature of mistake. In case the case or an application is at the threshold perhaps court may dismiss the application or the petition for want of mentioning of correct provision or the party may itself like to withdraw the application or the petition with liberty to file afresh. But situation would be different in case the case is at an advance stage or considerable time has already been spent by the court dismissing the application would be a hyper technical approach rather than doing substantive justice.

29. The learned counsel for the respondent relying on N.Mani v.Sangeetha Theatre; (2004) 12 SCC 278 has submitted that in the instant case there was only a technical problem, which was already removed by the learned ADJ court by directing the respondent to file amended petition of divorce under Special Marriage Act.

30. No Doubt, the pleadings are of utmost importance and so are the provisions of law under which they are filed. But courts are by and large guided by the substantive justice rather than ousting a party on hyper technicalities. This is more so in matrimonial cases which are not like commercial disputes. In matrimonial cases both the a parties are disturbed because of their matrimonial discord, therefore, they need to be dealt with humane approach with a view to find a solution to their vexed problem through adjudication if it is not possible through mediation and conciliation. Therefore, in my view, this judgment does not help the appellant.

31. The third submission is non-raising of 'No objection as to inherent lack of jurisdiction' in the written statement will not create any bar against the appellant to raise this plea at any time of the proceedings. Reliance in this regard was placed on the following three judgments Sarwan Kumar vs. Madan Lal Aggarwal; (2003) 4 SCC 147; Hira Lal Patni vs. Kali Nath; (1962) 2 SCR 747; andUnion of India vs. Baleshwar Singh; 1994 Supp. (2) SCC 587.

32. The three judgments with regard to the timely objection regarding the inherent lack of jurisdiction not being taken by the appellant, does not create any bar against the appellant raising that objection now.

33. In the instant case, there is no lack of inherent jurisdiction of the forum to deal with the divorce petition. It is the same district judge who deals with the divorce petitions under different enactments. The question was whether persons who had got married under Special Marriage Actcan be given divorce when the petition for divorce has been filed under H.M.A., certainly answer to this question is in negative. But then the question would arise should the petition be amended? The trial court has suo moto given direction to amend the petition.

34. The next submission is also connected with the earlier submissions that the appellant's conduct or his participation in the proceedings will not confer jurisdiction on a court or a Judge who inherently lacks the same.

35. Since I have already held above that there is no inherent lack of jurisdiction, therefore, this submission of the learned senior counsel for appellant that the appellant's participation will not confer the jurisdiction is of no merit. There was no inherent lack of jurisdiction. The only thing was wrong provision was invoked by the respondent. Having said so, the appellant ought to have raised this object at the earliest stage. Since this was not done there, it could be taken as an objection having been waived or the appellant is decreed to be estopped from raising the same. But still the question would have remained whether the cause of action for grant of divorce existed under the provision in which petition was filed. That would be question to be decided on merits.

36. The next submission is that the divorce petition is liable to be dismissed as the same has been filed after suppressing material facts from the Hon'ble Court and reliance in this regard was placed on Satish Khosla vs. Eli Lilly Ranbaxy Ltd.; 741 (1998) DLT 1; and A. Janaki vs. John Keneddy; MANU/TN/0394/2009.

37. At the outset, it stated so far as the question of concealment of facts, as alleged, is concerned, that is a question of merit of the matter and need not and cannot be gone into when the dismissal of the petition is sought on account of certain procedural irregularity.

38. Mr. Jai Bansal, the learned counsel for the respondent is concerned, has primarily placed reliance on the two judgments of the Bombay High Court and Guwahati High Court. These are Anandrao, s/o Marotrao Kharabe vs. Madhuri posing herself to be w/o Anandrao Kharabe &Anr.; 2009 (111) Bombay LR 832 and Anupam Das vs. Smt. Mampi Das; AIR 2008 Gau 3.

39. So far as Anupam Das's case (supra) is concerned, the same is distinguishable on the premise that this was a case which had come up before the High Court of Gauhati when a petition underArticle 227 of the Constitution of India was filed challenging an interlocutory order passed underSection 25 of the Hindu Marriage Act, 1955 and Section 20 (3) of the Hindu Adoptions andMaintenance Act, 1956 by the learned District Judge, Shillong directing the revision-petitioner to pay a sum of Rs.1,000/- per month to the respondent and another sum of Rs.500/- per month to her minor child for the purpose of maintenance. One of the grounds for challenging the maintenance order was that the marriage between the petitioner and the respondent/wife was solemnized and duly registered under the Special Marriage Act, 1954 and the learned District Judge had no inherent jurisdiction to entertain and proceed with the divorce petition filed by the respondent under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 and therefore, the application under Section 25 of the Hindu Marriage Act which was for permanent alimony which is to be granted at the time of divorce was itself not maintainable. The Hon'ble High Court did not accept this plea of the petitioner for setting aside the order by giving the reasoning that there is no dispute that the learned District Judge, Shillong had the jurisdiction to entertain the divorce petition, both under the provisions of Hindu Marriage Act and Special Marriage Act. It was also noted that incidentally, cruelty which was a ground for filing a petition for grant of divorce under the Hindu Marriage Act was also a ground for divorce under the Special Marriage Act underSection 27 (1) (d). It was also taken note that Section 36 of the Special Marriage Act provides interim maintenance and a similar provision for ad interim maintenance is made under Section 38 for the minor child. The High Court observed that the learned counsel for the petitioner was not able to show that the petition filed by the respondent for grant of divorce on the ground of cruelty under Section 27 (1) (d) of the Special Marriage Act did not have requisite cause of action. One important fact which may be noticed in that case is that although the marriage was performed under Special Marriage Act and got registered on 28.08.2002 but just after two months on 03.10.2002 marriage was solemnized again at Kamakhya Temple, Gauhati according to Hindu rites and ceremonies. It was in this background that the Hon'ble High Court had observed that the order with regard to grant of maintenance by the learned District Judge, Shillong had not committed any illegality or impropriety in passing the order of maintenance. At the same time, the High Court observed that henceforth, the petition for grant of divorce which has been filed under the Hindu Marriage Act shall be entertained as an application filed under the Special Marriage Act.

40. In Anandrao's case (supra) is also distinguishable from the instant case as the issue involved was whether it was open to the parties whose marriage is solemnized under the Special Marriage Act by mutual consent to dissolve their marriage can be legally dissolved as per customs which are saved by Hindu Marriage Act even though marriage is solemnized under Special Marriage Act. While referring to Section 4 read with Section 29 (2) and 29 (4), the Bombay High Court negatived both these contentions that a marriage which is solemnized under Special Marriage Actcan neither be dissolved under the Special Marriage Act as there is no ground for mutual consent divorce under the Special Marriage Act and secondly even though the parties are Hindus even then it could not be assumed that the marriage according to their customary rights could be dissolved by mutual consent because Section 29(4) even though expressly laid down that nothing contained in Hindu Marriage Act shall be deemed to affect the provisions under the Special Marriage Act, 1954 has to be read in context of Section 4 of the Hindu Marriage Act which gives an overriding affect over the customary rights which were in existence under the custom governing the relationship of the parties. Therefore, this judgment also at least recognizes one principle that if a mutual consent is not a ground for divorce and both the parties are Hindus by their religion, they cannot get their marriage dissolved by a provision which was nonexistent in the Special Marriage Act.

41. As against this, in the present case, the marriage originally had taken place according to Hindu Rights and Ceremonies in the year 1986. The said marriage was dissolved by a decree of divorce from a competent court on 02.06.1988. The parties had again got married under theSpecial Marriage Act and once they got married under Special Marriage Act, therefore, their conduct with regard to the grant of divorce or relationship would be covered under the Special Marriage Act only. The respondent filed a petition for divorce under the Hindu Marriage Act. It is only incidental that some of the grounds which are available in Hindu Marriage Act may be available as a ground for divorce under the Special Marriage Act or under the other matrimonial laws like Christian Marriage Act, but that would not be a ground to convert a petition which is filed under one enactment to a petition under another enactment as that would be resulting in chaos because then there will be no end to the plea which will be available to a party though the marriage had taken place in a particular law but the ground of divorce is available in the different law and that is why the petition is maintainable. Therefore, this judgment in my considered opinion does not help the respondent in any manner.

42. Because of these reasons, I feel that the acceptance of both these judgments as making a basis of dismissing the application by the learned Trial Judge was misplaced.

43. The next question which arises for consideration is though the learned Trial Judge has dismissed the application of the appellant filed under Section 151 CPC for dismissal of the divorce petition, but still it has directed the respondent to amend the divorce petition and for this purpose it has given time. The law regarding amendment of the plaint or a petition is incorporated under Order 6 Rule 17 CPC. The said order reads as under:

17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

44. A perusal of the aforesaid provision would clearly show that Order 6 Rule 17 CPC envisages amendment of a plaint or a written statement on an application and not on direction of the court meaning thereby that only when an application is filed by either the plaintiff or the defendant for amendment of its pleading, the court will be called upon to decide the said application at that point of time. The court has no power of its own unlike under Section 151 CPC or under Order 14 Rule 5 CPC or Order 1 Rule 10 CPC to pass an order which may be warranted under law in those contingencies. As has already been discussed in the previous paras, the learned Trial Judge, in my considered opinion, has exceeded its jurisdiction of also giving a direction to the respondent to amend the plaint and treat the provisions of Section 13(1) (a) i.e. ground of cruelty as a ground for grant of divorce under the Special Marriage Act.

45. But at the same time, it is pertinent to note that the courts must act in a manner so as to deliver substantive justice and to ensure that a litigant is not made into a litigant non grata for inadvertent deficiencies as the same might lead to a meritorious case being thrown out at the very threshold for mere technicalities.

46. In B.K.Narayana Pillai v. Parameswaran Pillai; AIR 2000 SC 614, the Hon'ble Apex Court has held as under:

" The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

47. When a party approaches a counsel for legal advice and entrusts the matter to him, it is presumed that the same shall be dealt with utmost professionalism and due despatch. In Rafiq v.Munshilal; (1981) 2 SCC 788, the Hon'ble Supreme Court has held that once a person engages his counsel his botheration goes and it is the duty of the counsel to take care of the case. In the instant case, the inadvertent drafting error seems to have crept in on the part of the drafting counsel which mistake should not prejudice the interest of the party.

48. The Hon'ble Supreme Court in Bhuwan Mohan Singh v. Meena;AIR 2014 SC 2875 has observed that all such applications pertaining to maintenance, divorce, custody of child must be decided expeditiously by the court owing to the factum that the lis before it pertains to emotional fragmentation and delay can feed it to grow. The instant case was filed in 2005 and we are in 2015, in the last ten years, the matter has not seen any substantial progress on account of the same being lying pending in the docket of this court merely due to an inadvertent drafting error which can be rectified on an amendment simplicitor.

49. In the light of the aforesaid facts, the appeal is partly allowed holding that the court had no power suo moto to amend the plaint or give directions to that effect to any party. However, keeping in view the peculiar facts and circumstances of the case, that the case has been pending in court for the last nearly ten years and it would advance substantive justice between the parties, an opportunity is given to the respondent to take corrective steps within a period of six weeks to rectify his mistake. In case such an application is filed, it shall be dealt within accordance with law.

50. The parties are directed to appear before the learned District Judge on 3rd August, 2015. With this direction, the appeal is partly allowed.

V.K. SHALI, J.