Wednesday, February 1, 2017

Consent cannot be withdrawn in Mutual Consent divorce u/s 13-B of Hindu Marriage Act.

. In the opinion of this Court, the following questions of law arise for
consideration by a division bench of this Court :-

A) Whether a party, which has under a settlement agreement decreed by
a Court undertaken to file a petition under Section 13B(1) or a motion
under Section 13B(2) of the Act, 1955 or both and has also undertaken to
appear before the said Court for obtaining divorce can be held liable for
contempt, if the said party fails to file or appear in the petition or motion or
both to obtain divorce in view of the option to reconsider/renege the
decision of taking divorce by mutual consent under Section 13B(2) of the
Act?

B) Whether by undertaking before a Court to file a second motion under
Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an
undertaking to a Court to that effect in a separate court proceeding, a party
waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes,
whether such right can be waived by a party under Section 13B(2) of the
Act, 1955?

C) Whether any guidelines are required to be followed by the Court
while recording the undertaking/agreement of the parties with respect to a
petition under Section 13B(1) or a motion under Section 13B(2) of the Act,
1955 or both for obtaining divorce?

D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia
Cont. Cas.(C) 772/2013 & Ors. 

(supra) are good law in view of the doubts expressed by this Court in paras

19 to 28 and in view of the Division Bench judgment in Dinesh Gulati
--------------------------------------------------------------------------------------------------------------------------

Cont. Cas.(C) 772/2013 & Ors. Page 1 of 29
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M. APPL. 8610/2015 in CONT.CAS(C) 772/2013
RAJAT GUPTA ..... Petitioner
Through Mr. Prashant Mendiratta with
Ms. Poonam Mehndiratta and
Mr. Harshwardhan Pandey,
Advocates
versus
RUPALI GUPTA ..... Respondent
Through Mr. Ankur Mahindro with
Mr. Shresth Choudhary,
Ms. Megha Agarwal, Ms. Devna,
Mr. Adhirath and Mr. Aarzoo Aneja,
Advocates
WITH
+ CONT.CAS(C) 584/2014
KAMAL GODWANI ..... Petitioner
Through Mr. F.K. Jha with Mr. Sarvesh,
Advocates
versus
ANNU BHARTI ..... Respondent
Through Mr. B.K. Srivastava and Mr.Rajeev
Katyain, Advocates.
AND
+ CONT.CAS(C) 483/2016 & C.M. APPLS. 15724/2016, 28622/2016,
42418/2016
W CDR SITANSHU SINHA ..... Petitioner
Through Mr.Ashish Virmani with Ms.Paridhi
Dixit, Advocates.
versus
Cont. Cas.(C) 772/2013 & Ors. Page 2 of 29
PRACHI SINGH @ PRACHI SINHA ..... Respondent
Through Mr.Ajit Kumar with Ms.Nutan
Kumari, Advocates.
AND
+ CONT.CAS(C) 484/2016 & C.M. APPLS. 15728/2016, 42419/2016
WG CDR SITANSHU SINHA ..... Petitioner
Through Mr.Ashish Virmani with Ms.Paridhi
Dixit, Advocates.
versus
PRACHI SINGH @ PRACHI SINHA ..... Respondent
Through Mr.Ajit Kumar with Ms.Nutan
Kumari, Advocates.
AND
+ CONT.CAS(C) 648/2014
DR. ARUN SHARMA ..... Petitioner
Through Mr.Sunil Mittal, Sr.Advocate with
Ms.Seema Seth and Mr.Dhruv
Grover, Advocates.
versus
POOJA SHARMA ..... Respondent
Through Mr. Prashant Mendiratta with
Ms. Poonam Mehndiratta and
Mr. Harshwardhan Pandey,
Advocates
AND
+ CONT.CAS(C) 1116/2016
AMRITA KAUR SAXENA ..... Petitioner
Through Mr.Amit Grover, Advocate.
Cont. Cas.(C) 772/2013 & Ors. Page 3 of 29
versus
GAURAV SAXENA ..... Respondent
Through Ms.Mrinalini Khatri, Advocate.
AND
+ CONT.CAS(C) 1147/2016
NAVEEN KUMAR JAIN ..... Petitioner
Through Mr.C.Rajaram with Mr.Sashi Panwar
and Mr.T.Kanniappan, Advocates.
versus
INDU JAIN ..... Respondent
Through Mr. Parvinder Chauhan, Advocate
with Mr. Nitin Jain, Advocate.
AND
+ CONT.CAS(C) 1251/2016
VIKAS SHARMA ..... Petitioner
Through Mr.Atul Kharbanda, Advocate.
versus
SHALINI CHHABRA ..... Respondent
Through Mr.Jitendra Kumar Jha with
Mr.Rupam Roy, Advocates.
AND
+ CONT.CAS(C) 484/2014
DEEPAK BATRA ..... Petitioner
Through Mr.Akhilesh Aggarwal, Advocate.
Cont. Cas.(C) 772/2013 & Ors. Page 4 of 29
versus
SWATI BATRA ..... Respondent
Through
% Date of Decision: 09th January, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
MANMOHAN, J: (Oral)
1. Present batch of contempt petitions has been filed alleging wilful
disobedience of undertakings given by a spouse to appear, sign and file both
the 13B(1) petition and 13B(2) motion of the Hindu Marriage Act, 1955
(hereinafter referred to as "Act, 1955"). These undertakings have been
accepted by a Court either at Section 13B(1) stage or incorporated in a
consensual decree. In all cases except Cont.Cas(C) Nos.1147/2016 and
1251/2016 the undertakings are against consideration.
2. Mr. Prashant Mendiratta, learned counsel for Mr. Rajat Gupta and
Ms. Pooja Sharma states that the Contempt of Courts Act, 1971 defines civil
contempt to be a wilful breach of undertaking given to a Court or order of a
Court. He submits that undertakings given to Courts and orders passed by
Courts are to be complied with in all circumstances.
3. According to him, the consent for mutual divorce by way of joint
petition under Section 13B of the Act, 1955 cannot be withdrawn by a party
for mala fide and extraneous reasons. In support of his submission, he relies
upon a judgment of the Bombay High Court in Rajesh Pratap Sainani Vs.
Mrs. Bhavna, 2008 SCC OnLine Bom 800 wherein it has been held as
under:-
― 34. The Family Court cannot be helpless spectator and
duplicity of the petitioner-husband to induce the hapless wife, the
respondent to waive maintenance claim for not only herself and
her son, also compelled her to withdraw the criminal complaint
in the hope of starting her life afresh. The husband by his
conduct has caused the wife huge disadvantage. No spouse can
unilaterally, wilfully be allowed to withdraw consent even on the
grounds; such as fraud, undue force, representation unless
grounds are proved satisfactorily, hi the present case, if the
withdrawal of consent by the petitioner-husband is upheld, it will
cause anomalous situation and serious prejudice to the
respondent-wife, who is law abiding person. She will be left high
and dry without recourse to any remedy and saddled with dead
marriage. The respondent-husband has resorted to fraud and
misrepresentation which cannot be permitted by the Courts of
Law and equity.‖
4. Mr. Mendiratta further submits that in circumstances similar to the
present batch of matters, the Delhi High Court in Avneesh Sood Vs. Tithi
Sood, Cont.Cas(c) 559/2011 and Shikha Bhatia Vs. Gaurav Bhatia & Ors.,
2010 SCC OnLine Del 1962 has held that contempt is attracted for breach of
undertaking accepted by the Court to file a petition as well as second motion
for divorce. The relevant portion of the aforesaid judgments is reproduced
hereinbelow:-
A) Avneesh Sood (supra) wherein it has been held as under:-
―46. As aforesaid, the respondent was not bound to give the said
undertaking to the Court. However, having given the same,
voluntarily and consciously, with a view to derive the benefit of
the agreement with the petitioner, if the respondent walks out of
the same, only for the reason that she has changed her mind with
regard to the custody/visitation rights of the minor child, she
must take the consequences. Pertinently, even now, the
respondent is not averse to proceeding with the mutual divorce
petition and filing a second motion petition. However, she wants
to do the same on her own terms in relation to alimony and
custody/visitation rights, contrary to her earlier agreement which
formed the basis of the first motion petition. It is, therefore, clear
that her decision to withhold her consent for moving the second
motion petition does not stem out of any new development or
mitigating circumstance which would justify the same, but only
on account of her having a change of mind on the aforesaid two
aspects. It is not that the respondent has decided to continue with
the marriage with the petitioner. She has not expressed any
desire to resume marital life with the petitioner. It is not her case
that her initial decision to move the mutual consent divorce
petition was a decision taken by her in haste or was a mistake.
Even now she does not dispute the fact that the marriage has, in
fact, broken down but she wants to use her right not to give
consent for the second motion petition as a bargaining point,
which the petitioner prefers to call a black mail tactics.
47. No doubt the law gives the right to both the parties to take a
decision whether, or not, to continue with the mutual consent
divorce proceedings, and for that purpose a cooling off period of
at least 6 months is provided under the scheme of the Act. It does
not mean that an undertaking given by them to the Court to
continue their consent even for moving the second motion
petition can be said to be an illegal consent or undertaking or an
undertaking recorded by the Court without jurisdiction. She,
while giving her undertaking, did not undertake to commit an
illegality, or to do anything which is barred by law. No one
compelled the respondent to give the said undertaking. She could
have kept her options open whether, or not, to give her consent
for moving the second motion petition at the end of the cooling of
period of six months. But she did consciously decide to give the
said undertaking to the Court. This she did to derive benefit
under the agreement with the petitioner.
Cont. Cas.(C) 772/2013 & Ors. Page 7 of 29
48. If a party is permitted to resile from an undertaking given to
the Court, in pursuance of an agreement arrived at between the
parties, without any penal consequences, the same would
completely destroy the sanctity attached to such solemn
undertakings, and would encourage dishonesty and disrespect
for the judicial process. It would also undermine the majesty and
authority of courts, and instill doubts in the minds of the
litigating public with regard to the efficacy of the judicial
process and, in particular, with regard to the process of
accepting undertakings by the Court and of the efficacy of the
undertakings given to the Court by a party, and the acceptance
thereof by the Court, as a part of a settlement process. It was on
account of the respondent's conduct of voluntarily giving her
undertaking to the Court to abide by her settlement, and the
acceptance thereof by the Court, which led the petitioner to
agree to pay an amount of Rs. 7 crores in all to the respondent,
and to part with a huge amount of Rs. 1.5 cores at the first
motion stage. The respondent cannot make mockery of the law
and mock at the Courts by now claiming that she has decided not
to give her consent for moving the second motion petition, and
that too for the reasons that she wants to renegotiate the terms of
settlement, both in relation to her monetary compensation and
custody/visitation rights in respect of the minor child. It is clear
that the respondent has exploited and abused the process of the
Court to serve her purpose, without intending to adhere to her
solemn undertaking given to the Court.
B) Shikha Bhatia (supra) wherein it has been held as under:-
―26. In this case, the respondents had entered into an agreement
with the petitioner herein with open eyes and the terms of the
agreement have been acted upon. No doubt the law provides that
a party has a right to withdraw the consent given but the reasons
for withdrawal as in the case of Smt. Sureshta Devi (supra) was
that the wife had been coerced and forced to enter into signing
the petition for mutual consent without allowing her to consult
her family members nor she was permitted to bring her family
members to Court at the time when the statement was made,
besides that the wife at the first opportunity available withdraw
her consent. Crime against women are on the rise. Keeping in
view the facts of this case, if the husband respondent No. 1 is
allowed to resile from the settlement recorded in Court on the
basis of express statement and representation of respondent No.
1 to the effect of settlement between the parties, the Court
considered the anticipatory bail application of the respondents
favourably, it would amount to allowing the respondent to steal
an order of bail from the Court and thus interfering in the course
of justice. It would encourage unscrupulous persons and would
certainly open flood gates for such litigants, to sham settlement
at the time when the bail application is being considered and
later on simply plead that the settlement was not out of free will.
The respondents cannot be permitted to make a mockery of the
legal system and such willful and deliberate disobedience of the
order of the Court would weaken the rule of land. The mindset of
the respondent No. 1 and his conduct is established by the
statement made during cross-examination that the settlement was
signed by him as was asked by his lawyer, that it was necessary
for the anticipatory bail in the criminal cases. This itself speaks
volume of the legal advice rendered and the conduct of the
respondents. In the case of Kapildeo Prasad Sah v. State of
Bihar, (1999) 7 SCC 569, it was held as under:
―For holding the respondents to have committed contempt,
civil contempt at that, it has to be shown that there has been
wilful disobedience of the judgment or order of the Court.
Power to punish for contempt is to be resorted to when
there is clear violation of the Court's order. Since notice of
contempt and punishment for contempt is of far reaching
consequence, these powers should be invoked only when a
clear case of wilful disobedience of the Court's order has
been made out. Whether disobedience is wilful in a
particular case depends on the facts and circumstances of
that case. Judicial orders are to be properly understood and
complied. Even negligence and carelessness can amount to
disobedience particularly when attention of the person is
drawn to the Court's orders and its implication.
Disobedience of Court's order strikes at the very root of
Cont. Cas.(C) 772/2013 & Ors. Page 9 of 29
rule of law on which our system of governance is based.
Power to punish for contempt is necessary for the
maintenance of effective legal system. It is exercised to
prevent perversion of the course of justice.
In his famous passage, Lord Diplock in Attorney
General v. Times Nexvspapers Ltd., (1973) 3 All.E.R. 54
said that there is also ―an element of public policy in
punishing civil contempt, since administration of justice
would be undermined if the order of any Court of law could
be disregarded with impunity‖. Jurisdiction to punish for
contempt exists to provide ultimate sanction against the
person who refuses to comply with the order of the Court or
disregards the order continuously. Initiation of contempt
proceedings is not a substitute for execution proceedings
though at times that purpose may also be achieved.
No person can defy Court's order. Wilful would exclude
casual, accidental bona fide or unintentional acts or
genuine inability to comply with the terms of the order. A
petitioner who complains breach of Court's order must
allege deliberate or contumacious disobedience of the
Court's order.
xxxx xxxx xxxx xxxx
31. It may also be noticed that respondent No. 1 has not signed
the first motion it cannot be said that the second motion would
have been filed without the gap of six months. This submission is
also accordingly rejected. Since there is no quarrel with regard
to the proposition that there has to be gap of six months between
the first motion and the second motion, the judgment relied upon
by Counsel for the respondents Smt. Sureshta Devi v. Om
Prakash, (1991) 2 SCC 25 as also Anil Kumar Jain (supra)
require no discussion as in this case the first motion was not
signed by the parties."
5. Mr. Mendiratta also submits that it is a trite position in law that a
Cont. Cas.(C) 772/2013 & Ors. Page 10 of 29
person can contract themselves out of a statutory right intended for their
benefit provided such act does not impinge on the public policy. Release of
statutory right by a person is also called waiver. According to him, a person
is said to waive his/her statutory right if he/she voluntarily relinquishes the
same in consideration of some act by another person. A waiver of right,
based upon contract, gives rise to a cause of action. A contract under which
a person has waived his/her right is valid and enforceable provided such
waiver does not impinge upon public policy. In support of his submission,
he relies upon the following judgments:-
(i) Shri Lachoo Mal Vs. Shri Radhey Shyam, (1971) 1 SCC 619
wherein the Supreme Court has held as under:-
― 6. The general principle is that every one has a right to waive
and to agree to waive the advantage of a law or rule made
solelyfor the benefit and protection of the individual in his
private capacity which may be dispensed with without
infringing any public right or public policy. Thus the maxim
which sanctions the non-observance of the statutory provision
is cuilibet licet renuntiare juri pro se introducto. (See Maxwell
on Interpretation of Statutes, Eleventh Edn., pp. 375 and 376).
If there is any express prohibition against contracting out of a
statute in it then no question can arise of any one entering into
a contract which is so prohibited but where there is no such
prohibition it will have to be seen whether an Act is intended to
have a more extensive operation as a matter of public
policy……‖
(ii) Krishna Bahadur Vs. Purna Theatre & Ors., (2004) 8 SCC 229
wherein the Supreme Court has held as under:-
―10. A right can be waived by the party for whose benefit certain
requirements or conditions had been provided for by a statute
subject to the condition that no public interest is involved therein.
Whenever waiver is pleaded it is for the party pleading the same
to show that an agreement waiving the right in consideration of
some compromise came into being. Statutory right, however, may
also be waived by his conduct.‖
(iii) Union of India Vs. Pramod Gupta (D) By Lrs. & Ors., (2005) 12
SCC 1 wherein the Supreme Court has held as under:-
―111. It is, therefore, not correct to contend that there cannot be any
waiver of the right to claim interest. Statutory provisions are made for
payment of interest with a view to compensate a party which had
suffered damages owing to a positive action or inaction of the other
resulting in blockade of money which he would otherwise have
received. A party which itself represents before the court of law that it
would not claim interest with a view to obtain an order of stay which
would be for its own benefit, in our opinion, could not be permitted to
take advantage of its own wrong. (See Sushil Kumar v. Rakesh
Kumar [(2003) 8 SCC 673] and Laxminarayan R. Bhattad v. State of
Maharashtra [(2003) 5 SCC 413].)‖

6. He points out that in Municipal Corporation of Greater Bombay Vs.
Dr. Hakimwadi Tenants’ Association and Ors., (1988) Supp. SCC 55, the
Supreme Court held that procedure under Section 5A of the Land
Acquisition Act with respect to hearing of objections to the proposed land
acquisition could be waived. The relevant portion of the judgment relied
upon is reproduced hereinbelow:-
―18. The right to claim enhanced compensation or for that
matter the right to seek reference to the civil Court with a view to
get the enhanced compensation is a right intended solely for the
benefit of the landholder. It is purely a personal right conferred
on him. If such right is waived or given up by his voluntary
action, no considerations of public policy would arise, much less
would there be any negation of public rights. Nor is there any
prohibition in law against waiving the right conferred on him
Cont. Cas.(C) 772/2013 & Ors. Page 12 of 29
under Section 18. We do not therefore visualise any legal
impediment for applying the doctrine of waive.

7. Mr. Sunil Mittal, learned senior counsel for petitioner Dr. Arun
Sharma in Cont. Cas.(C) 648/2014 states that in pursuance to the 59th Report
(1974) of the Law Commission, Order 32A was inserted by Act 104 of 1976
in Code of Civil Procedure to deal with the matters concerning family
disputes. He points out that simultaneously in 1976, Section 13B was
introduced in the Act, 1955 to allow dissolution of marriage by mutual
consent. According to him, as the legislature felt the need in public interest
to establish Family Courts for speedy settlement of family disputes, it
enacted Family Court Act, 1984. He submits that all the aforesaid
amendments were brought about in law to encourage settlement between the
parties in Family Law matters.

8. According to Mr. Sunil Mittal, wherever the parties have signed the
mediation settlement and the same has been accepted/approved by the
referral court, it has to be taken as if the parties to the settlement had waived
their individual right to withdraw their consent.

9. On the other hand, Mr. Ankur Mahindro, learned counsel for
respondent in Cont. Cas. (C) No. 772/2013 submits that if one of parties
refuses to join/give consent for recording of statement under Section 13B(2)
of the Act, 1955, then the Family Court cannot pass a decree of divorce
based upon mutual consent as contemplated under Section 13B of the Act,
1955 and such an act cannot constitute contempt. In support of his
submission, he relies upon the judgement of the Division Bench of this
Court in Dinesh Gulati Vs. Ranjana Gulati, MAT. APP. (F.C.) 70/2016
decided on 2
nd August, 2016.

10. Mr. Ankur Mahindro submits that the concept of marriage is not a
contract under Hindu law and despite the inclusion of 13B of the Act, 1955,
the intention of the legislature is not to allow divorce on grounds of
irreconcilable differences.

11. He further submits that Section 13B of the Act, 1955 is a complete
code in itself which provides for cause of action, grounds and reasons which
are required to be satisfied by the parties, the procedure to be followed by
the Court and the premise which ought to be taken into consideration by the
Court before it passes a decree of divorce on the ground of mutual consent
and jurisdiction of the Court to grant a relief under the provisions of the Act,
1955 is controlled by legislative limitation of the respective provisions. In
support of his submission, he relies upon following judgments:-
A) Miten S/o. Shyamsunder Mohota (Goidani) and Anr. Vs. Union of
India, 2008 (55) MhLj 27 wherein it has been held as under:-
"23.......Prior to the amendment Act of 1976, the remedy of
divorce under Hindu Marriage Act was entirely based upon guilt
theory i.e. where one party accused other of having committed
acts and deeds which would entitle other for seeking divorce in
compliance with the provisions of the Act. The 1976 amendments
added a concept of mutuality in relation to dissolution of
marriage. The purpose of introducing mutuality was not to
dissolve the marriages between the newly wed at the drop of the
hat without any reason/justification............ The purpose of
providing time is to give an opportunity to the parties to
harmonise their lives rather than taking steps hastily to destroy
the institution of marriage and convert Hindu marriage purely to
a contractual relationship."
B) Principal Judge, Family Court, Nagpur Vs. Nil, AIR 2009 BOM 12
wherein it has been held as under:-
"14. The Supreme Court in the case of Smt. Sureshta Devi termed
this period as a waiting period, obviously, intended to give
opportunity to the parties to reflect on their move and seek advice
from relations and friends. In this transitional period, one of the
parties may have second thought and change mind not to proceed
with the petition. The mutual consent ought to continue from the
date of institution of first motion till passing of the decree. This is
the significance of the provisions of section 13B(2) of the Act. It
will not only be unjust but would be impermissible on accepted
norms of statutory interpretation that this period of six months is
treated as optional, condonable or could be waived at the request
of the parties. The law must be given a meaning that would be
applicable and acceptable generally and not to a particular case.
Firstly, the legislature has not provided any power of relaxation
to the Court in regard to the stated period of six months under
section 13B(2). Secondly, if this procedure is adopted at the
behest of the parties by the Court, it will amount to denial of a
statutory benefit of rethinking. The period of six months is the
product of the legislature and the Courts have always upheld its
validity. To waive or abolish by judicial dictum a specific
provision of the legislature would amount to negating a statutory
provision which is otherwise constitutional and cannot easily be
dropped in reality. No prejudice is caused to the parties by merely
waiting for a short period of six months before they take a vital
and pertinent decision in regard to their marriage which is a
social sacrament coupled with civil rights and obligations and
which they had entered upon voluntarily and happily. Impulsive
and impatient decisions rarely guide the parties to the logical and
correct decision. They must have time to ponder over their
decision and reassure themselves that the decision of dissolving
their marriage is correct and needs to be implemented. For
arriving at such a vital decision, the period of six months is to be
held as mandatory and in conformity with the legislative intent
expressed in no uncertain terms in the relevant provisions.

15. We can hardly see any reason for giving an unnecessary
liberal interpretation to the provisions of section 13B(2) of the Act
by reading into these provisions power of relaxation with the
Court. Wherever the legislature wanted to grant such a
relaxation, it has undoubtedly spelt out so in the provisions itself.
Reference can be made in this regard to section 14 of the Act
wherein extreme hardship or cruelty has been given as grounds
for the Court to entertain the petition by granting relief to present
the petition for divorce even before the expiry of the specified
period of one year. If that being the scheme of the Act, we are
unable to assent to the view that the power of relaxation or waiver
should be read into section 13-B of the Act in face of the clear
language of the provision and the judgment of the Supreme Court
in the case of Smt. Sureshta Devi. Legislative scheme and object
of the Act shows that object of the Act is to attribute social and
matrimonial security to the institution of marriage rather than to
dissolve marriage at the drop of the hat. ........"
12. Mr. Ankur Mahindro submits that waiver is a question of fact and it
must be properly pleaded and proved. He states that in the present cases
neither any plea of waiver has been pleaded nor the factual foundation for it
has been laid in the pleadings. In support of his submission, he relies upon
Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh & Ors.,
(1979) 2 SCC 409.
13. Mr. Ankur Mahindro also submits that the public policy of India as
enshrined in Section 13B of the Act, 1955 does not allow marriage to be
dissolved, in any other manner, except in accordance with its provisions.
14. He points out that the Kerala High Court in the case of K.V.
Janardhanan Vs. N.P. Syamala Kumari & another, M.F.A. No. 386/1988
decided on 15th January, 1990 has observed that an agreement to dissolve a
marriage in derogation of the provisions of the Act, 1955 is violative of the
public policy of India. The relevant portion of the judgment relied upon by
him is reproduced hereinbelow:-

"6. But compromise between parties in divorce proceedings,
agreeing with each other to dissolve the marriage was never
regarded in law as consistent with public policy. Even evidence
given by parties admitting matrimonial offences was frowned at
by the courts. Lord Mansfield expressed his disapproval against
such admission of parties themselves in divorce proceedings
way back in 1777 (vide Goodright's case, (1) COWP 591). The
same was the stand adopted by the House of Lords
in Russel v. Russel, (1924) AC 687. The legislative policy, in
India has not changed from the aforesaid approach. That is
why the statutes governing law of divorce even now insist that
the court should guard against collusion between parties for
wangling unmerited divorce decrees. The Hindu Marriage Act
with all its progressive innovations still retains the provision
which cautions the court to guard against collusion between
spouses. Marriage as an institution has a bearing on the society
and in divorce proceedings the parties are not actually
restricted to the spouses alone since their children are also
affected persons. This is one of the main reasons which stands
against such compromises. Section 13B in the Act is not to be
understood as carte blenche granted by Parliament to the
spouses to dissolve the marriage on mutual agreement. The
said provision contains certain other postulates also despite the
dominance of mutual agreement factor therein. Section 23 of
the Act emphasises that the court can pass a decree only on
satisfaction that any of the grounds for granting relief exists.
The said section imposes a duty on the court to consider and
decide on the existence or non-existence of certain other factors
enumerated therein. The closing words in Section 23(1) reflects
the Parliament's concern in the matter. Those words are these:
―then, an in such a case, but not otherwise, the court shall
decree such relief accordingly‖. The prohibition incorporated
in the paranthetical clause is eloquent and cannot be
overlooked."
15. He states that the Punjab & Haryana High Court in Usha Devi Vs.
Mahinder, Criminal Revision No. 2362 of 2008 (O&M) decided on 1
st
Cont. Cas.(C) 772/2013 & Ors. Page 17 of 29
July, 2009 has held that a divorced wife cannot waive its claim to
maintenance under Section 125 Cr. P.C. by making a statement to this
effect, at the time of divorce. The relevant portion of the judgment relied
upon by him is reproduced hereinbelow:-
"A perusal of these extracts leaves no manner of doubt that a
statement made by a wife, giving up her right of maintenance or
an agreement to that effect would not estop a wife, whether
divorced or otherwise, from filing a petition under Section
125 of the Code. Such a statement or agreement would be
opposed to public policy and would violate Section 23 of the
Indian Contract Act , 1872 being an agreement unenforceable in
law. Any conclusion to the contrary would be opposed to the
statutory provisions of the Act and would be violative of the
public policy that underlines the provisions of Section 125 of the
Code."
16. Mr. Ankur Mahindro lastly submits that the Court has no jurisdiction
to go into the bona fides or reasonableness of withdrawal of consent and the
Court cannot adjudicate upon the merits of such withdrawal. In support of
his submission, he relies upon the judgment of the Division Bench of the
Kerala High Court in Rajesh R. Nair Vs. Meera Babu, AIR 2014 Ker 44
wherein it has been held as under:-
"18. The further question to be considered is whether once
consent is given and is later withdrawn by one of the parties,
whether the Court can enquire into the bona fides or otherwise
of the withdrawal of the consent. By providing that the enquiry
under Section 13B(2) shall be only if consent is not withdrawn,
the statute specifically recognizes the right of the parties to
withdraw the consent even at the stage of the enquiry
contemplated under Section 13B(2). That right available to the
parties is an unqualified right and for any reason whatsoever, if
the parties or one of them, choose to withdraw their consent,
such withdrawal of consent is in exercise of the right available
Cont. Cas.(C) 772/2013 & Ors. Page 18 of 29
under Section 13B(2). If that be so, it is not for the court to
probe into the bona fides or reasonableness of withdrawal of
consent and once consent is withdrawn, the only option
available to the Court is to close the matter at that stage. If that
be the legal position, we are unable to find any fault on the part
of the Family Court in having dismissed the petition on the
ground of non-compliance of the requirement of Section 13B(2)
of the Act."

17. In rejoinder, Mr. Sunil Mittal, learned senior counsel for petitioner
submits that the Division Bench judgment in Dinesh Gulati (supra) is per
incuriam inasmuch as it has not taken note of the judgment of this Court in
Avneesh Sood (supra) and Shikha Bhatia Vs. Gaurav Bhatia, 2011 SCC
OnLine Del 1014.

18. He further submits that the judgments relied upon by learned counsel
for respondent are not good law as they have not considered the effect of the
judgment of the Supreme Court in the case of Afcons Infrastructure Ltd. &
Anr. Vs. Cherian Varkey Construction Co. (P) Ltd. & Ors., (2010) 8 SCC
24 wherein it has been held as under:-
"38. The other four ADR processes are non-adjudicatory and the
case does not go out of the stream of the court when a reference
is made to such a non-adjudicatory ADR forum. The court
retains its control and jurisdiction over the case, even when the
matter is before the ADR forum. When a matter is settled
through conciliation, the settlement agreement is enforceable as
if it is a decree of the court having regard to Section 74 read
with Section 30 of the AC Act. Similarly, when a settlement takes
place before the Lok Adalat, the Lok Adalat award is also
deemed to be a decree of the civil court and executable as such
under Section 21 of the Legal Services Authorities Act, 1987.
Though the settlement agreement in a conciliation or a
settlement award of a Lok Adalat may not require the seal of
approval of the court for its enforcement when they are made in
Cont. Cas.(C) 772/2013 & Ors. Page 19 of 29
a direct reference by parties without the intervention of court,
the position will be different if they are made on a reference by a
court in a pending suit/proceedings. As the court continues to
retain control and jurisdiction over the cases which it refers to
conciliations, or Lok Adalats, the settlement agreement in
conciliation or the Lok Adalat award will have to be placed
before the court for recording it and disposal in its terms.
39. Where the reference is to a neutral third party (―mediation‖
as defined above) on a court reference, though it will be deemed
to be reference to Lok Adalat, as the court retains its control and
jurisdiction over the matter, the mediation settlement will have
to be placed before the court for recording the settlement and
disposal. Where the matter is referred to another Judge and
settlement is arrived at before him, such settlement agreement
will also have to be placed before the court which referred the
matter and that court will make a decree in terms of it.
40. Whenever such settlements reached before non-adjudicatory
ADR fora are placed before the court, the court should apply the
principles of Order 23 Rule 3 of the Code and make a
decree/order in terms of the settlement, in regard to the subjectmatter
of the suit/proceeding. In regard to matters/disputes
which are not the subject-matter of the suit/proceedings, the
court will have to direct that the settlement shall be governed by
Section 74 of the AC Act (in respect of conciliation settlements)
or Section 21 of the Legal Services Authorities Act, 1987 (in
respect of settlements by a Lok Adalat or a mediator). Only then
such settlements will be effective."

19. Having heard learned counsel for the parties, this Court is of the view
that it is first necessary to determine as to whether Section 13B of the Act,
1955 postulates mutuality/consent for divorce to continue till the time the
decree of divorce is passed and if so, whether such a condition precedent
incorporates a legislative policy which cannot be waived by either of the
spouses, even for valuable consideration.

20. Consequently, it is essential to analyse Section 13B of the Act, 1955.
The said Section reads as under:-
"13B. Divorce by mutual consent.—(1) Subject to the
provisions of this Act a petition for dissolution of marriage by a
decree of divorce may be presented to the district court by both
the parties to a marriage together, whether such marriage was
solemnized before or after the commencement of the Marriage
Laws (Amendment) Act, 1976, on the ground that they have
been living separately for a period of one year or more, that
they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier
than six months after the date of the presentation of the petition
referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the
meantime, the court shall, on being satisfied, after hearing the
parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized and that the averments in the
petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the
decree."

21. In the opinion of this Court, the consent given by the parties either at
the time of execution of a settlement agreement bearing the imprimatur of a
Court or at the time of filing of the petition under Section 13B(1) of Act,
1955 for divorce, has to subsist till the date the decree of divorce is issued.
The period of waiting ranging from six to eighteen months is intended to
give an opportunity to the parties to reflect/renege and if one of the parties
does not wish to proceed ahead with the divorce during this period, then
divorce cannot be granted. Further, the Court has to be satisfied about the
Cont. Cas.(C) 772/2013 & Ors. Page 21 of 29
bona fide and consent of the parties till the date of decree - and if it is not so,
the Court gets no jurisdiction to pass a decree for divorce. In fact, the
Supreme Court in Smt. Suresta Devi Vs. Om Prakash, (1991) 2 SCC 25 has
held as under:-
"13. From the analysis of the section, it will be apparent that
the filing of the petition with mutual consent does not authorise
the court to make a decree for divorce. There is a period of
waiting from 6 to 18 months. This interregnum was obviously
intended to give time and opportunity to the parties to reflect on
their move and seek advice from relations and friends. In this
transitional period one of the parties may have a second
thought and change the mind not to proceed with the petition.
The spouse may not be a party to the joint motion under subsection
(2). There is nothing in the section which prevents such
course. The section does not provide that if there is a change of
mind it should not be by one party alone, but by both. The High
Courts of Bombay and Delhi have proceeded on the ground
that the crucial time for giving mutual consent for divorce is the
time of filing the petition and not the time when they
subsequently move for divorce decree. This approach appears
to be untenable. At the time of the petition by mutual consent,
the parties are not unaware that their petition does not by itself
snap marital ties. They know that they have to take a further
step to snap marital ties. Sub-section (2) of Section 13-B is
clear on this point. It provides that ―on the motion of both the
parties. … if the petition is not withdrawn in the meantime, the
court shall … pass a decree of divorce …‖. What is significant
in this provision is that there should also be mutual consent
when they move the court with a request to pass a decree of
divorce. Secondly, the court shall be satisfied about the bona
fides and the consent of the parties. If there is no mutual
consent at the time of the enquiry, the court gets no jurisdiction
to make a decree for divorce. If the view is otherwise, the court
could make an enquiry and pass a divorce decree even at the
instance of one of the parties and against the consent of the
other. Such a decree cannot be regarded as decree by mutual
consent.

14. Sub-section (2) requires the court to hear the parties which
means both the parties. If one of the parties at that stage says
that ―I have withdrawn my consent‖, or ―I am not a willing
party to the divorce‖, the court cannot pass a decree of divorce
by mutual consent. If the court is held to have the power to
make a decree solely based on the initial petition, it negates the
whole idea of mutuality and consent for divorce. Mutual
consent to the divorce is a sine qua non for passing a decree for
divorce under Section 13-B. Mutual consent should continue till
the divorce decree is passed. It is a positive requirement for the
court to pass a decree of divorce. ―The consent must continue
to decree nisi and must be valid subsisting consent when the
case is heard‖. [See (i) Halsbury's Laws of England, 4th edn.,
vol. 13 para 645; (ii) Rayden on Divorce, 12th edn., vol. 1, p.
291; and (iii) Beales v. Beales [(1972) 2 All ER 667, 674].
15. In our view, the interpretation given to the section by the
High Courts of Kerala, Punjab and Haryana and Rajasthan in
the aforesaid decisions appears to be correct and we affirm that
view. The decisions of the High Courts of Bombay, Delhi and
Madhya Pradesh (supra) cannot be said to have laid down the
law correctly and they stand overruled."'
(emphasis supplied)
22. The aforesaid view has been reiterated by the Supreme Court in the
case of Hitesh Bhatnagar Vs. Deepa Bhatnagar, (2011) 5 SCC 234.
23. The Supreme Court in the case of Anil Kumar Jain Vs. Maya Jain,
(2009) 10 SCC 415 has also held that the period of six months between
filing a petition of divorce by mutual consent under Section 13B(1) of the
Act, 1955 and grant of decree of divorce under Section 13B(2) of the Act,
1955 cannot be waived off by the parties or by any civil court or High Court.
The relevant portion of the said judgment is reproduced hereinbelow:-
Cont. Cas.(C) 772/2013 & Ors. Page 23 of 29
"29. In the ultimate analysis the aforesaid discussion throws up
two propositions. The first proposition is that although
irretrievable breakdown of marriage is not one of the grounds
indicated whether under Sections 13 or 13-B of the Hindu
Marriage Act, 1955 for grant of divorce, the said doctrine can
be applied to a proceeding under either of the said two
provisions only where the proceedings are before the Supreme
Court. In exercise of its extraordinary powers under Article 142
of the Constitution the Supreme Court can grant relief to the
parties without even waiting for the statutory period of six
months stipulated in Section 13-B of the aforesaid Act. This
doctrine of irretrievable breakdown of marriage is not
available even to the High Courts which do not have powers
similar to those exercised by the Supreme Court under Article
142 of the Constitution. Neither the civil courts nor even the
High Courts can, therefore, pass orders before the periods
prescribed under the relevant provisions of the Act or on the
grounds not provided for in Sections 13 and 13-B of the Hindu
Marriage Act, 1955.

30. The second proposition is that although the Supreme Court
can, in exercise of its extraordinary powers under Article 142
of the Constitution, convert a proceeding under Section 13 of
the Hindu Marriage Act, 1955, into one under Section 13-B and
pass a decree for mutual divorce, without waiting for the
statutory period of six months, none of the other courts can
exercise such powers. The other courts are not competent to
pass a decree for mutual divorce if one of the consenting
parties withdraws his/her consent before the decree is passed.
Under the existing laws, the consent given by the parties at the
time of filing of the joint petition for divorce by mutual consent
has to subsist till the second stage when the petition comes up
for orders and a decree for divorce is finally passed and it is
only the Supreme Court, which, in exercise of its extraordinary
powers under Article 142 of the Constitution, can pass orders
to do complete justice to the parties."
(emphasis supplied)


24. Further, if the submission of the petitioners is accepted then it would
amount to applying two contrary parameters inasmuch as though the parties
would be asked to wait for the mandatory period of six months, yet at the
same time neither of the parties would be allowed to rethink or go back on
their undertaking during the waiting period, i.e., between allowing the
petition under Section 13B(1) and before filing of motion under Section
13B(2) of the Act, 1955. In the opinion of this Court, a strict enforcement of
undertaking/settlement agreement/consent decree would make the
mandatory waiting period otiose and defeat the statutory object to rethink
and reconsider the decision to go ahead with mutual divorce before
pronouncement of decree under Section 13B(2) of the Act, 1955.

25. This Court is of the opinion that the legislative intent is not that a
marriage should be dissolved only on the basis of consent given in a prior
settlement agreement bearing the imprimatur of a Court or at the stage of
Section 13B(1) petition just because it was coupled with consideration.

26. Undoubtedly, as held in in Avneesh Sood (supra) and Shikha Bhatia
(supra), no litigant can be allowed to wriggle out of a solemn undertaken
given to a Court and orders of the Courts have to be obeyed until and unless
they are set aside in appeal/revision, yet this Court is of the view that the
statutory option to reflect and retract cannot be taken away just because one
of the parties has given an undertaking or has accepted either some money
or benefit at the 13B(1) stage. However, one cannot retain a benefit
received at the 13B(1) stage, if he/she is not willing to go ahead with the
second motion. A party who has developed second thoughts has to return
the benefit received either under the settlement agreement or at 13B(1)
stage. But, in the opinion of this Court, it would not be proper to force the
party who has developed second thoughts in accordance with the option
given by the statute, to go ahead with the divorce at the pain of contempt.
Consequently, this Court has grave doubts as to the applicability of the
judgment in Afcons Infrastructure Ltd. & Anr. (supra) to the present batch
of matters.

27. Also, if the statutory requirement is of continuous consent till the
second motion is allowed, then this Court has grave doubt as to whether the
action of a party exercising its statutory right to rethink/renege can be
termed as mocking at the Court or encouraging dishonesty or indulging in
fraud/ misrepresentation as held in Avneesh Sood (supra) and Shikha
Bhatia (supra).

28. Moreover, as rightly pointed out by learned counsel for the
respondent, the judgment of the Division Bench of this Court in the case of
Dinesh Gulati (supra) has taken a diametrically different view than the one
taken by learned Single Judges of this Court in Avneesh Sood (supra) and
Shikha Bhatia (supra). The judgment in Dinesh Gulati (supra) is
reproduced hereinbelow:-
"1. The appellant is aggrieved by the order dated 04.04.2016
whereby he was issued show cause notice to answer why
contempt proceedings ought not to be proceeded with against
him for noncompliance of the order recording the joint
statement of the parties. The brief facts are that the appellant
had initiated proceedings for dissolution of marriage between
him and the respondent wife by HMA 545/ 2014. During the
pendency of those proceedings the parties stated before the
court that they had resolved their differences and they would
move for a mutual consent divorce under Section 13- B of the
Cont. Cas.(C) 772/2013 & Ors. Page 26 of 29
Hindu Marriage Act, 1956. Apparently, for one reason or the
other mutual consent divorce proceedings were not initiated. In
these circumstances, the appellant moved contempt proceedings
for initiating actions against the respondent wife. The contempt
petition was dismissed by the impugned order. At the same
time, the court initiated – of its own accord suo motu contempt
proceedings against the present appellant for non-compliance
of the order and the joint statement dated 22.07.2014.

2. The recourse to the contempt proceedings in the
circumstances of the present case as well as the orders passed
on 04.04.2016 and 22.07.2014 (order recording joint statement
of the parties) is baffling given that it completely neglects the
mutuality aspect as provided for under Section 13B. It is not
understandable how the court through its order initiated the
coercive process of contempt proceedings, foreclosed the
choice which the parties have by virtue of the mechanism under
Section 13B – to award mutual consent divorce in two stages.
To put it differently – through the impugned order, the parties’
right to step back at any stage stood negated. If the law permits
the parties to rethink and not proceed with mutual consent
divorce – a concept which is based upon mutuality, an
agreement to divorce cannot be enforced in a manner that is
sought to be done in the present case. It is settled law that even
if a compromise is embodied in an order, its essential
characteristics of being founded on a contract that casts upon
an enforceable contract, is not in any manner undermined. If
this essential reality is lost sight of, the parties may be faced
with dangerous consequences – unintended legal result i.e. a
residuary ground of divorce otherwise not thought of by
Parliament or made into a separate ground for dissolution of
marriage.

3. Having regard to the fact that the parties are unable to or do
not wish to proceed with the agreement dated 22.07.2014 for a
mutual consent divorce, the appropriate recourse in our
opinion would be to restore the original divorce petition HMA
545/2014 on the file of the case. The parties are directed to be
present before the concerned Family Judge on the date fixed.
Cont. Cas.(C) 772/2013 & Ors. Page 27 of 29
The court shall thereafter proceed with the main petition for
divorce referred by the appellant on its merits.

4. Appeal is allowed in the above terms. The pending
application also stands disposed of.‖
(emphasis supplied)

29. Keeping in view the aforesaid reasons, this Court has serious doubts
as to view taken by earlier Coordinate Benches in Avneesh Sood (supra)
and Shikha Bhatia (supra). Consequently, it deems it appropriate to refer
the matter to a Division Bench. This Court may mention that the decision
of this Court to refer the matter to a Division Bench is in conformity with
the decision of the Supreme Court in Sant Lal Gupta and Others Vs.
Modern Cooperative Group Housing Society Limited and Others, (2010)
13 SCC 336 wherein it has been held as under:-

―17. A coordinate Bench cannot comment upon the discretion
exercised or judgment rendered by another coordinate Bench of
the same court. The rule of precedent is binding for the reason
that there is a desire to secure uniformity and certainty in law.
Thus, in judicial administration precedents which enunciate the
rules of law form the foundation of the administration of justice
under our system. Therefore, it has always been insisted that the
decision of a coordinate Bench must be followed.
(Vide Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal
Patel [AIR 1968 SC 372], Sub-Committee of Judicial
Accountability v. Union of India[(1992) 4 SCC 97] and State of
Tripura v. Tripura Bar Assn. [(1998) 5 SCC 637 : 1998 SCC
(L&S) 1426] )

18. In Rajasthan Public Service Commission v. Harish Kumar
Purohit [(2003) 5 SCC 480 : 2003 SCC (L&S) 703] this Court
held that a Bench must follow the decision of a coordinate
Bench and take the same view as has been taken earlier. The
earlier decision of the coordinate Bench is binding upon any
Cont. Cas.(C) 772/2013 & Ors. Page 28 of 29
latter coordinate Bench deciding the same or similar issues. If
the latter Bench wants to take a different view than that taken
by the earlier Bench, the proper course is for it to refer the
matter to a larger Bench.‖
(emphasis supplied)

30. In the opinion of this Court, the following questions of law arise for
consideration by a division bench of this Court :-
A) Whether a party, which has under a settlement agreement decreed by
a Court undertaken to file a petition under Section 13B(1) or a motion
under Section 13B(2) of the Act, 1955 or both and has also undertaken to
appear before the said Court for obtaining divorce can be held liable for
contempt, if the said party fails to file or appear in the petition or motion or
both to obtain divorce in view of the option to reconsider/renege the
decision of taking divorce by mutual consent under Section 13B(2) of the
Act?

B) Whether by undertaking before a Court to file a second motion under
Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an
undertaking to a Court to that effect in a separate court proceeding, a party
waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes,
whether such right can be waived by a party under Section 13B(2) of the
Act, 1955?

C) Whether any guidelines are required to be followed by the Court
while recording the undertaking/agreement of the parties with respect to a
petition under Section 13B(1) or a motion under Section 13B(2) of the Act,
1955 or both for obtaining divorce?

D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia
Cont. Cas.(C) 772/2013 & Ors. Page 29 of 29
(supra) are good law in view of the doubts expressed by this Court in paras
19 to 28 and in view of the Division Bench judgment in Dinesh Gulati
(supra).

Accordingly, list the matters before Division Bench on 07th February,

2017 subject to orders of Hon’ble the Chief Justice.
MANMOHAN, J
JANUARY 09, 2017
js/rn

Divorce Granted by Church is not valid and its illegal.

The Hon"ble Apex Court dismissed the petition filed by the petitioner, and invoked a judgment holding that parliamentary laws shall override personal laws and that “statutory provisions shall prevail and override any personal law”.

The bench, said that the petition was “devoid of merit” and deserved to be dismissed in view of the 1996 judgment which had settled the law on the point of marriage and divorce among Christians. The court said that a divorce decree can be passed only by a district court or a high court, authorised under the Divorce Act.

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IN THE SUPREME COURT OF INDIA
 CIVIL ORIGINAL JURISDICTION
 WRIT PETITION (CIVIL) NO.57 OF 2013
 CLARENCE PAIS ... PETITIONER(S)
 VS.
 UNION OF INDIA & ORS. ... RESPONDENT(S)
 O R D E R
1. Heard learned counsel for the rival parties.
2. The solitary prayer made by the petitioner through
the instant writ petition is as udner :
“a) Issue a writ in the nature of
Mandamus/Certiorary and thereby grant
declaration that the Code of Common Law is
the Personal Law of the Indian Christians
and has to be recognized as such by the
Courts (Civil and Criminal) in India and
which would supercede any other law in
conflict thereto and other accordingly.”
3. The afore-stated prayer is based on the following
factual averment :
“It is respectfully submitted that Canon Law is
the Personal Law of the Catholics of India and
Canon Law has to be applied and enforced by the
Criminal Court while deciding a case under
Section 494 of the IPC and sanction of
prosecution considered for alleged Bigamy of a
Catholic spouse who has married after obtaining a
decree for nullity of the first marriage from the
Ecclesiastical Tribunal.”
1
4. Mr. N.K. Kaul, learned Additional Solicitor General
of India, has invited our attention to the fact, that the
issue raised by the petitioner for consideration of this
Court, has already been adjudicated upon, and settled
finally. In this behalf, he has invited our attention to
the judgment, rendered by this Court in Molly Joseph alias
Nish Vs. George Sebastian alias Joy [(1996) 6 SCC 337]. In
the afore-stated judgment, this Court held as under :
“From a bare reference to the different
provisions of the Act including preamble thereof
it is apparent that Divorce Act purports to amend
the law relating to divorce of persons professing
the Christian religion and to confer upon courts
which shall include District Court and the High
Court jurisdiction in matrimonial matters. In
this background, unless the Divorce Act
recognises the jurisdiction, authority or power
of Ecclesiastical Tribunal (sometimes known as
Church Court) any order or decree passed by such
Ecclesiastical Tribunal cannot be binding on the
courts which have been recorgnised under the
provisions of the Divorce Act to exercise power
in respect of granting divorce and adjudicating
in respect of matrimonial matters. It is well
settled that when legislature enacts a law even
in respect of the personal law of a group of
persons following a particular religion, then
such statutory provision shall prevail and
override any personal law, usage or custom
prevailing before coming into force of such Act.
From the provisions of the Divorce Act it is
clear and apparent that they purport to prescribe
not only the grounds on which a marriage can be
dissolved or declared to be nullity, but also
provided the forum which can dissolve or declare
the marriage to be nullity. As already mentioned
above, such power has been vested either in the
District Court or the High Court. In this
background, there is no scope for any other
authority including Ecclesiastical Tribunal
(Church Court) to exercise power in connection
with matrimonial matters which are covered by the
provisions of the Divorce Act. The High Court
2
has rightly pointed out that even in cases where
Ecclesiastical Court purports to grant annulment
or divorce the Church authorities would still
continue to be under disability to perform or
solemnize a second marriage for any of the
parties until the marriage is dissolved or
annulled in accordance with the statutory law in
force.”
5. In view of the decision rendered by this Court, as
has been extracted hereinabove, we are of the view, that
the instant writ petition is wholly devoid of merit and is
liable to be dismissed.
6. Ordered accordingly. Pending application, if any,
stands disposed of.

..................CJI.
[JAGDISH SINGH KHEHAR]
....................J.
[Dr. D.Y. CHANDRACHUD]
New Delhi;

19th January, 2017.         

Thursday, December 8, 2016

Hindu Couple can remarry 90 days after divorce

The decision of the HC comes as a relief to estranged Hindu couples who want challenge the orders, decrees or verdicts of the Family Courts.
The ruling came from a full bench presided over by Justice Naresh Patil, Justice Ramesh Dhanuka and Justice Sadhana Jadhav. In 2014, another division bench headed by Justice Abhay Oka had referred the matter to a full bench, wherein the full bench was requested to deal with the legal controversy of appeal period for Hindu couples.
The basic controversy was that whether the provisions of Family Courts Act which provides for a 30 days deadline will be applicable for divorcing Hindu couples or the provisions mentioned in the Hindu Marriage Act, which provides for a total of 90 days deadline to file appeals.
The significance of the limitation provided by law is that once the appeal deadline ends, the divorced couple is free to remarry without the fear of challenge to the family court decree.
In its 30-page order, the full bench said, “While interpreting the provisions of the said two enactments (Family Courts Act and Hindu Marriage Act), it needs to be considered that we are a country of vast population, millions of people face financial hardship for litigating a matter, people have to spend considerable amount of time, money and energy. The geographical conditions further make easy access to justice difficult.”
“We are of the view that considering the scheme of both the enactments it would not be appropriate to apply different period of limitation, one in case of orders passed by the Family Courts and in another by the regular Civil Courts. Such an approach would frustrate very purpose of legislation,” the bench added.
Accordingly, the bench held that if an appeal is filed by any Hindu individual under the provisions of the Family Courts Act, the period of limitation prescribed under the Hindu Marriage Act (90 days) would apply.
The decision of the HC comes as a relief to estranged Hindu couples who want challenge the orders, decrees or verdicts of the Family Courts.
The controversy was that whether the provisions of Family Courts Act which provides for a 30 days deadline will be applicable for divorcing Hindu couples or the provisions mentioned in the Hindu Marriage Act, which provides for a total of 90 days deadline to file appeals.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 161 OF 2013
Shri Shivram Dodanna Shetty
Aged 54 years, Occupation : Service,
Residing at Building No. 40, Sumrite
Co-Op. Society, Room No. 2, Sector-7,
New Panvel, Dist. Raigad. .. Appellant
Versus
Sou. Sharmila Shivram Shetty
Aged 31 years, Occupation : Service,
Residing at 2, Ekveera Dharshan
Building, Kisan Nagar No.1,
Thane – 400 604. .. Respondent
Ms. Zenobia S. Irani/Nair a/w Mr. Prashant Tikare a/w Fatima
Rampurwalla for appellant.
Mr. Nitin P. Dalvi for respondent.
Mr. Aspi Chinoy, Senior Counsel, Amicus Curiae.
Mr. Murtaza Najmi, Advocate appeared suo motu.
 CORAM: NARESH H. PATIL,
 R. D. DHANUKA &
 SMT. SADHANA S. JADHAV, JJ.
 RESERVED ON : AUGUST 26, 2016.
 PRONOUNCED ON : DECEMBER 01, 2016

JUDGMENT [ Per Naresh H. Patil, J.] :
1. A question framed by the Division Bench of this court was
referred to a Larger Bench by the then Hon'ble the Acting Chief Justice of
this Court. The question was framed by the Division Bench (Coram:A. S.
Oka & A. S. Gadkari, JJ.) by an order dated 10/12/2014. The said question
reads as under :-
“Whether an appeal under sub-section (1) of section 19 of the
Family Courts Act, 1984 will be governed by the period of
limitation under sub-section (3) of section 19 or whether the
period of limitation provided under sub-section (4) of section
28 of the Hindu Marriage Act, 1955 will apply to such
Appeal?
2. The Hindu Marriage Act, 1955 (for short “the Act of 1955)
was enacted by Parliament for amending and codifying the law relating to
marriage amongst Hindus. The Act of 1955 became law on 18/5/1955.
The Act of 1955 was amended by Amendment Act 68 of 1976, Amendment
Act 2 of 1978 and Amendment Act 50 of 2003. The proceedings under
the Act of 1955 were to be instituted in District Court. Section 3(b) defines
“District Court” as under:-
“(3) Definitions.- In this Act, unless the context otherwise
requires, -
(a)
(b) “district Court” means, in any area for which there is a
City Civil Court, that Court, and in any other area the principal
Civil Court of original jurisdiction, and includes any other
Civil Court which may be specified by the State Government,
by notification in the Official Gazette, as having jurisdiction in
respect of the matters dealt with in this Act;”
The provision for filing of appeals from decrees and orders is prescribed
under Section 28 of the Act of 1955, which reads as under :-
“28. Appeals from decrees and orders.-(1) All decrees made
by the Court in any proceeding under this Act shall, subject to
the provisions of sub-section (3), be appealable as decrees of
the Court made in the exercise of its original civil jurisdiction,
and every such appeal shall lie to the Court to which appeals
ordinarily lie from the decisions of the Court given in the
exercise of its original civil jurisdiction.
(2) Orders made by the Court in any proceeding under this
Act under section 25 or section 26 shall, subject to the
provisions of sub-section (3), be appealable if they are not
interim orders, and every such appeal shall lie to the Court to
which appeals ordinarily lie from the decisions of the Court
given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the
subject of costs only.
(4) Every appeal under this section shall be preferred within
a period of ninety days from the date of the decree or order.”
In Section 28(4), the Act prescribed a period of limitation of
thirty days, which came to be substituted to ninety days by way of Act 50
of 2003.
3. The Family Courts Act, 1984 (for short “the Act of 1984) was
enacted to provide establishment of Family Courts with a view to promote
conciliation in, and secure speedy settlement of, disputes relating to
marriage and family affairs and for matters connected therewith. The Act
of 1984 was enacted on 14/9/1984. The said Act provides that the State
Government shall, after consultation with the High Court, establish the
Family Court. Section 3 of the Act of 1984 reads as under :-
“3. Establishment of Family Courts.- (1) For the purpose
of exercising the jurisdiction and powers conferred on a
Family Court by this Act, the State Government, after
consultation with the High Court, and by notification, -
(a) shall, as soon as may be after the commencement
of this Act, establish for every area in the State
comprising a city or town whose population exceeds
one million, a Family Court;
(b) may establish Family Courts for such other areas
in the State as it may deem necessary.
(2) The State Government shall, after consultation with the
High Court, specify, by notification, the local limits of the area
to which the jurisdiction of a Family Court shall extend and
may, at any time, increase reduce or alter such limits.
Section 7 of the Act of 1984 prescribed as under:
“7. Jurisdiction. - (1) Subject to the other provisions of this
Act, a Family Court shall -
(a) have and exercise all the jurisdiction exercisable
by any district Court or any subordinate civil Court
under any law for the time being in force in respect of
suits and proceedings of the nature referred to in the
Explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district Court or, as
the case may be, such subordinate civil Court for the
area to which the jurisdiction of the Family Court
extends.
Explanation. - The suits and proceedings referred to in this
sub-section are suits and proceedings of the following nature,
namely:-
(a) a suit or proceeding between the parties to a
marriage for a decree of nullity of marriage (declaring
the marriage to be null and void or, as the case may be,
annulling the marriage) or restitution of conjugal rights
or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status of
any person;
(c) a suit or proceeding between the parties to a
marriage with respect to the property of the parties or of
either of them;
(d) a suit or proceeding for an order or injunction in
circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the
legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship
of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family
Court shall also have and exercise -
(a) the jurisdiction exercisable by a Magistrate of the
first class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the Code
of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it
by any other enactment.
Section 8 of the Act of 1984 reads as under :-
“8. Exclusion of jurisdiction and pending proceedings. -
Where a Family Court has been established for any area, -
(a) no district Court or any subordinate civil Court
referred to in sub-section (1) of section 7 shall, in
relation to such area, have or exercise any jurisdiction in
respect of any suit or proceeding of the nature referred
to in the Explanation to that sub-section;
 (b) no Magistrate shall, in relation to such area, have
or exercise any jurisdiction or powers under Chapter IX
of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to
in the Explanation to sub-section (1) of section 7 and
every proceeding under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974), -
(i) which is pending immediately before the
establishment of such Family Court before any
district Court or subordinate Court referred to in
that sub-section or, as the case may be, before any
Magistrate under the said Code; and
(ii) which would have been required to be
instituted or taken before or by such Family Court
if, before the date on which such suit or
proceeding was instituted or taken, this Act had
come into force and such Family Court had been
established,
shall stand transferred to such Family Court on
the date on which it is established.
The provision of appeal is prescribed under Section 19, which
reads as under :-
“19. Appeal. - (1) Save as provided in sub-section (2) and
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908) or in the Code of Criminal
Procedure, 1973 (2 of 1974), or in any other law, an appeal
shall lie from every judgment or order, not being an
interlocutory order, of a Family Court to the High Court both
on facts and on law.
(2) No appeal shall lie from a decree or order passed by the
Family Court with the consent of the parties or from an order
passed under Chapter IX of the Code of Criminal Procedure,
1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to
any appeal pending before a High Court or any order passed
under Chapter IX of the Code of Criminal Procedure, 1973 (2
of 1974) before the commencement of the Family Courts
(Amendment) Act, 1991.
(3) Every appeal under this section shall be preferred within
a period of thirty days from the date of the judgment or order
of a Family Court.
 (4) The High Court may, of its own motion or otherwise,
call for and examine the record of any proceeding in which the
Family Court situate within its jurisdiction passed an order
under Chapter IX of the Code of Criminal Procedure, 1973 (2
of 1974) for the purpose of satisfying itself as to the
correctness, legality or propriety of order, not being an
interlocutory order, and as to the regularity of such
proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to
any Court from any judgment, order or decree of a Family
Court.
(6) An appeal preferred under sub-section (1) shall be heard
by a Bench consisting of two or more judges.”
4. Section 19(3) of the Act of 1984 prescribed a period of thirty
days for filing appeal from every judgment or order not being an
interlocutory order by Family Court to the High Court, both on facts and on
law.
Section 20 of the Act of 1984 reads as under :-
“20. Act to have overriding effect. - The provisions of this
Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in
force or in any instrument having effect by virtue of any law
other than this Act.”
5. The provisions of Section 28(4) of the Act of 1955 came to be
amended by substituting the period of limitation from thirty days to ninety
days consequent to the judgment of the Apex Court delivered in the case
of Savitri Pandey vs. Prem Chandra Pandey1
. The Family Courts were
established at some places in the State of Maharashtra. At places where the
Family Courts could not be established, proceedings are being initiated in
the regular civil courts.
6. An issue was framed by the Division Bench that whether an
appeal under sub-section (1) of Section 19 of the Act of 1984 will be
governed by the period of limitation under sub-section (3) of Section 19 of
the Act of 1984 or under sub-section (4) of Section 28 of the Act of 1955?
7. Mr. Aspi Chinoy, learned Senior Counsel, assisted the
court as an Amicus Curiae. We have heard the learned Senior Counsel at
length. It was submitted by the learned Senior Counsel that if the two
statutes are so construed and understood, there is no conflict between the
1.AIR 2002 SC 591
two laws, both of which are enacted by Parliament. In his submission, no
question arises of invoking non obstante provision under Section 20 of the
Act of 1984. The Act of 1984 and the non obstante provision is not
intended to and cannot have the result of impliedly repealing provisions
made in the substantive law i.e. the Hindu Marriage Act, 1955. The Act of
1984 provides for a special forum / court to decide such matrimonial
disputes and it also provides for special rules or procedure in such cases.
In this context, the non obstante provision prescribed in Section 20 of the
Act of 1984 is required to be construed, according to the learned Senior
Counsel.
On the principle of interpretation of statutes, learned Senior
Counsel submitted that both the statutes are to be construed and read
harmoniously. The Act of 1984 does not expressly repeal Section 28 of the
Act of 1955. When there is no express repeal, courts have not favoured
such repeal by implication. On the other hand, it is indicated by the courts
that if earlier and later statutes can reasonably be construed in such a way
that both can be effective, the same may be done. The legislature, while
enacting a law, is presumed to have complete knowledge of law on the
same subject matter and, therefore, when it does not provide a repealing

provision, it gives out an intention not to repeal the existing legislation.
Learned Senior Counsel further submitted that the Act of 1955
is a special law vis-a-vis the Act of 1984, which is a general law, which
provides a forum for the adjudication of matrimonial disputes arising under
all the diverse substantive laws. It was submitted that it is well settled
principle of interpretation of law that general law does not abrogate earlier
special law by mere implication. The Act of 1984 is essentially a
procedural law. It is a settled principle of interpretation of law that the
legislature while enacting a law in the year 2003 was presumed to be
aware of the provisions of the existing legislation, including Section 19(3)
of the Act of 1984. Therefore, it would be contrary to the purpose and
object of the scheme of law to read the amendment of Section 28(4) as
operating only where the proceedings are brought in the ordinary civil
court and as not applying / operating when proceedings under the Act of
1955 are brought in the Family Court. Learned Senior Counsel referred to
the following judgments :-
(a) Savitri Pandey vs. Prem Chandra Pandey [AIR 2002 SC
591].
 (b) R. S. Raghunath vs. State of Karnataka and anr. [(1992)
1 SCC 335].
(c) Viswanathan P. K. Vs. Sindhu M. K. [2009 SCC
OnLine Ker 4124].
(d) Sonia Kunwar Singh Bedi vs. Kunwar Singh Bedi [2015
(1) Mh. L. J. 954].
8. Learned counsel Mr. Murtaza Najmi, who appeared suo motu,
submitted that the Act of 1984 is a later law and it has a overriding effect in
respect of the provisions relating to the limitation prescribed for filing an
appeal. Learned counsel submitted that the appeals arising out of the
proceedings initiated in Family Court shall be governed by the provisions
of Section 19(3) of the Act of 1984 and the appeals arising out of the
ordinary civil court under the Act of 1955 shall be governed by the
provisions of Section 28(4) of the Act of 1984. The counsel submitted that
in a way, in respect of provisions of limitation, both the Acts have certain
inconsistencies, but considering the scheme of the provisions of the Act of
1984, Section 19(3) of the said Act will have be to given precedence over
the provisions of Section 28(4) of the Act of 1955. Learned counsel
submitted that the later general law can repeal prior special law.
9. Ms. Zenobia Irani, learned counsel appearing for the appellant
submitted that it is a matter of record that the Parliament did not amend the
provisions relating to limitation as prescribed under the Act of 1984. The
Act of 1984 is partly procedural and partly substantial. A discriminatory
type of provisions are prescribed relating to two different forums
considering the subject matter of appeals prescribed. Keeping in view the
purpose of enactment of both the statutes, the provisions of these statutes
will have to be construed. Learned counsel differs in respect of the
interpretation placed by the learned Senior Counsel Mr. Aspi Chinoy, as
stated above.
10. Mr. Nitin Dalvi, learned counsel appearing for respondent,
supported the submissions made by the learned Senior Counsel Mr. Aspi
Chinoy. Learned counsel submitted that both the provisions prescribed
under both the Acts must be considered and construed harmoniously and be
held that a period prescribed under the Act of 1955 under Section 28(4)
shall be applicable to the appeals preferred in the High Court arising out of
the judgments and orders passed by the Family Court or the Civil Court.
Learned counsel submitted that with a view to secure speedy settlement of
disputes relating to marriage and family affairs, separate Family Courts
were established pursuant to the Act 66 of 1984. The Act of 1984 is a

procedural law prescribing procedure to be adopted in the Family Courts.
Prior to the enactment of the Act of 1984, all the family matters were
adjudicated under Order XXXIIA of Civil Procedure Code, 1908 before the
concerned District Courts.
11. We have considered the submissions advanced before us,
perused the provisions of the relevant statutes and the judgments cited.
We have also gone through some of the Parliamentary debates in respect of
passing of both the enactments.
12. In the case of Seaford Court Estates, Ltd. vs. Asher2
 Lord
Denning stated as under :-
“........Whenever a statute comes up for consideration it must
be remembered that it is not within human powers to foresee
the manifold sets of facts which may arise, and, even if it
were, it is not possible to provide for them in terms free from
all ambiguity. The English language is not an instrument of
mathematical precision. Our literature would be much the
poorer if it were. This is where the draftsmen of Acts of
Parliament have often been unfairly criticised. A judge,
2 1949 (2) All England Report 155
believing himself to be fettered by the supposed rule that he
must look to the language and nothing else, laments that the
draftsmen have not provided for this or that, or have been
guilty of some or other ambiguity.........”

13. The provisions of Section 28 (4) of the Act of 1955 came to be
amended consequent to the suggestion given by the Apex Court in Savitri
Pandey's case (Supra). In its letter and spirit, the views of the Apex Court
in the case of Savitri Pandey are required to be considered. The Apex
Court observed that period of limitation prescribed for filing appeal under
Section 28(4) was apparently inadequate which facilitates frustration of
the marriages by unscrupulous litigant spouses. It is necessary to refer to
the observations of the Apex Court in para 18 of the said judgment here
itself:-
“18. At this stage we would like to observe that the period of
limitation prescribed for filing the appeal under Section 28(4)
is apparently inadequate which facilitates the frustration of the
marriages by the unscrupulous litigant spouses. In a vast
country like ours, the powers under the Act are generally
exercisable by the District Court and the first appeal has to be
filed in the High Court. The distance, the geographical
conditions, the financial position of the parties and the time
required for filing a regular appeal, if kept in mind, would
certainly show that the period of 30 days prescribed for filing
the appeal is insufficient and inadequate. In the absence of
appeal, the other party can solemnise the marriage and attempt
to frustrate the appeal right of the other side as appears to have
been done in the instant case. We are of the opinion that a
minimum period of 90 days may be prescribed for filing the
appeal against any judgment and decree under the Act and any
marriage solemnised during the aforesaid period be deemed to
be void. Appropriate legislation is required to be made in this
regard. We direct the Registry that the copy of this judgment
may be forwarded to the Ministry of Law & Justice for such
action as it may deem fit to take in this behalf.”
(Emphasis supplied)
14. Consequent to the observations and suggestions given by the
Apex Court, quoted above, the Parliament amended the provisions of
Section 28(4) of the Act of 1955. Therefore, the purpose and object
behind amending the said Act in the year 2003 is required to be considered.
While amending the provisions, the Parliament was aware of the existence
of the Act of 1984. It is presumed that the Parliament was conscious of
the existence of another statute relating to the subject, prescribing forum
and procedure and period of limitation. Therefore, a harmonious
interpretation which would advance the object and purpose of the
legislation will have to be adopted.
15. As the Act of 1955 was amended by the Parliament in the year
2003, in that sense, the period of limitation of ninety days was prescribed
by a later law which would override the provisions relating to period of
limitation prescribed in the earlier enactment i.e. Act of 1984. The
substantive provision of law was amended at a later stage and the same
shall prevail being later in point of time.
16. Even if both the Acts are considered on certain subjects and
situations to be special and general, even then, as a matter of sound
interpretation and keeping in view the purpose for providing a larger period
of limitation, it must be construed that the appeals arising out of the
judgment and orders passed by the Family Court shall be governed by a
larger period of limitation prescribed under Section 28(4) of the Act of
1955. Any contrary interpretation would frustrate the very object of the
enactment which was made on the suggestion of the Apex Court in the case
of Savitri Pandey.
17. Considering the provisions of the Act of 1984 and the Act of
1955, we do not find that there is an express repeal of the provisions of
Section 28(4).
18. The Apex Court, in para 11, in the case of R. S. Raghunath
vs. State of Karnataka and anr.3
, by referring to earlier judgment in the
case of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC
447], observed as under:-
“..... In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram the
scope of non-obstante clause is explained in the following
words: (SCCp.477-78, para 67)
“ A clause beginning with the expression
`notwithstanding anything contained in this Act or in
some particular provision in the Act or in some
particular Act or in any law for the time being in force,
or in any contract' is more often than not appended to a
section in the beginning with a view to give the enacting
part of the section in case of conflict an overriding effect
over the provision of the Act or the contract mentioned
in the non-obstante clause. It is equivalent to saying that
in spite of the provision of the Act or any other Act
mentioned in the non-obstante clause or any contract or
document mentioned the enactment following it will
3 (1992) 1 SCC 335
have its full operation or that the provisions embraced in
the non-obtante clause would not be an impediment for
an operation of the enactment.”
On a conspectus of the above authorities it emerges that the
non-obstante clause is appended to a provision with a view to
give the enacting part of the provision an overriding effect in
case of conflict. But the non-obstante clause need not
necessarily and always be co-extensive with the operative part
so as to have the effect of cutting down the clear terms of an
enactment and if the words of the enactment are clear and are
capable of a clear interpretation on a plain and grammatical
construction of the words the non-obstante clause cannot cut
down the construction and restrict the scope of its operation.
In such cases the non-obstante clause has to be read as
clarifying the whole position and must be understood to have
been incorporated in the enactment by the legislature by way
of abundant caution and not by way of limiting the ambit and
scope of the Special Rules.”
In the above case, in para 7, the Apex Court referred to the
Maxwell on The Interpretation of Statutes (11th Edition, page 168). The
principle of law was stated as under :
“ A general later law does not abrogate an earlier special
one by mere implication. Generalia specialibus non derogant,
or, in other words, `where there are general words in a later
Act capable of reasonable and sensible application without
extending them to subjects specially dealt with by earlier
legislation, you are not to hold that earlier and special
legislation indirectly repealed, altered, or derogated from
merely by force of such general words, without any indication
of a particular intention to do so. In such cases it is presumed
to have only general cases in view, and not particular cases
which have been already otherwise provided for by the special
Act.”
19. Learned Senior Counsel, Mr. Aspi Chinoy, referred to the
observations made by the Division Bench of Kerala High Court in paras 17
and 20 of the judgment in the case of Viswanathan P. K. vs. Sindhu M.
K.4
, which read as under :
“17. In this case, there is no specific non-obstante clause
available in either statute. But both stipulations occupy the
same field. The dictum above can hence be relied on safely.
The learned counsel contend that the purpose and object of
Marriage Laws Amendment Act 2003 must be taken into
consideration and evidently the Marriage Laws Amendment
Act was enacted in the light of the observations in paragraph
19 of Savitri Pandey (supra) which we have already extracted
4 2009 SCC OnLine Ker 4124
above. The purpose of amending Section 28(4) obviously was
the inconvenience and hardship noted by the Supreme Court
in Savitri Pandey (AIR 2002 SC 591). The Supreme Court
observed that to prefer an appeal before the High Court
against an order passed by the District Court, a period of 30
days may not be sufficient and that such a stipulation is
working out injustice as was revealed in the facts of that case.
The purpose of the Marriage Laws Amendment Act, by which
Section 28(4) of the Hindu Marriage Act was amended, was
obviously to give a larger period of limitation for the parties
aggrieved by the orders passed in matrimonial cases under the
Hindu Marriage Act and the Special Marriage Act. In this
view of the matter, considering the purpose and object of the
Act it is evident that the period of limitation under Section
28(4) of the Hindu Marriage Act which amendment was
brought in with effect from 23-12-2003 must be given
prominence and predominance.
20. Fifthly, the learned counsel contends that the principle
of law is well settled that when a later enactment prescribes a
different period of limitation, such later enactment must be
preferred. Of course, the Hindu Marriage Act was enacted in
1955. The Family Courts Act was enacted in 1984. But the
crucial amendment to Section 28 (4) was enacted later in
2003. The parliament must be presumed to have known the
relevant stipulations of general nature in Section 19(3) while
bringing in the amendment to Section 28(4). In support of this
proposition, the learned counsel relies on the following
observations of the Supreme Court in paragraph 21 of Sarwan
Singh (AIR 1977 SC 265) (Supra):”
20. We may refer to the observations made by the Division Bench
of this Court in paras 20, 21, 24 and 25 of the judgment in the case of
Sonia Kunwar Singh Bedi vs. Kunwar Singh Bedi5
, which read as
under:-
“20. Thus, later enactment must prevail over the former. The
same test was approved by the Supreme Court in Shri Ram
Narain vs. Simla Banking and Industrial Co. Ltd., 1956 SCR
603 : AIR 1956 SC 614. On the principle that the later
enactment i.e. Marriage Laws Amendment Act, 2003 must
prevail over the earlier enactment i.e. Family Courts Act, the
larger period of limitation prescribed under section 28(4) of
the Hindu Marriage Act must prevail. On the principle of
equality under Article 14 of the Constitution of India also an
identical period of limitation must be held to be applicable
against all orders appealable under section 28 of the Hindu
Marriage Act. Merely because the order is passed by a
District Court, a larger period of limitation i.e. 90 days and
merely because the order is passed by the Family Court, a
lesser period of limitation of 30 days would be unreasonable
5 2015 (1) Mh.L.J. 954
and will not stand the test of equality. The interpretation must
be such that an identical period of limitation would be
available for orders appealable under section 28 of the Hindu
Marriage Act – whether such order is passed by the District
Court or the Family Court.
21. Thereafter the learned counsel for the applicant also
raised the contention that in view of section 20 of the Family
Courts Act in which there is non-obstante clause, the Family
Court Act would prevail over the Hindu Marriage Act.
The short question that remains to be considered is
whether the non-obstante clauses in section 19 and 20 can
override the applicability of the period of limitation
prescribed for an appeal under section 28. A non-obstante
clause cannot be read mechanically. The totality of the
circumstances have to be taken into account. The precise
intention of the legislature will have to ascertained. Vague and
general non-obstante clauses cannot operate to militate against
specific stipulations made in enactments to meet specific
situations. We have already discussed above why section 28
(4) of Hindu Marriage Act was amended, this circumstance has
to be given due weightage.
24. The first two decisions relied upon by Mr. Jaisinghani
are not applicable to the facts of the present case. The
remaining three decisions which are pressed into service by
Mr. Jaisinghani were rendered by Allahabad High Court,
Madras High Court and Karnataka High Court, whereas the
last two decisions in the case of Milan Tandel and Surekha
Sawant (supra) are by Division Benches of this Court. We
have already observed that the decisions by the Allahabad,
Madras and Karnataka High Courts can at the most only have
persuasive value.
25. We do not find any reason to take a different view from
the one taken by the Division Bench of our Court in Milan
Laxman Tandel's and Surekha Savant's cases. In view thereof,
we reject the preliminary objection and hold that there is no
delay in filing the appeal. In other words, we hold that the
appeal having been filed within 90 days, as contemplated by
section 28(4) of the Hindu Marriage Act, is within limitation.
Hence, there is no merit in this application and the same is
rejected.”
21. Considering the scheme of the enactments of the Act of 1955
and the Act of 1984, more precisely the provisions of limitation and non
obstante provision provided in the Act of 1984, we do not find a clear
inconsistency between the two enactments. It is principle of law that for
giving a overriding effect to a non obstante provision, there should be clear
inconsistency between the two enactments.
22. The principle of law of interpretation further lays down that in
a given case both the enactments could be special statutes dealing with
different situations and there could be non obstante provision in both the
special statutes. In such a situation, the conflict between two enactments
need to be resolved, considering the purpose and object of the Act.
23. It is settled rule of interpretation that if one construction leads
to a conflict, whereas on another construction, two Acts can be
harmoniously constructed, then the later must be adopted. On such
interpretation, the objects of both the enactments would be fulfilled and
there would be no conflict.
24. While interpreting the provisions of the said two enactments, it
needs to be considered that we are a country of vast population, millions of
people face financial hardship for litigating a matter, people have to spend
considerable amount of time, money and energy. The geographical
conditions further make easy access to justice difficult and taking into
consideration all these circumstances, coupled with the peculiar situation
faced by the parties while litigating matrimonial, family related issues, the
Apex Court made certain observations in the case of Savitri Pandey which
28
full bench matter - fca-161-13
suggestion was accepted by the Parliament and accordingly the law was
amended.
25. We are convinced of the interpretation put up by the learned
Senior Counsel that if the two statutes are construed and understood in its
proper sense, then there is no conflict between the two laws and, therefore,
no question arises of invoking non obstante provision in Section 20 of the
Act of 1984. The enactment of the Act of 1984 or non obstante provision
in Section 20 is not intended to impliedly repeal provisions made in the
Act of 1955. The Act of 1984 provides for a special forum relating to
matrimonial disputes and with that view, special procedure was devised for
expeditious adjudication of the cases. It is in that context the non obstante
provision of Section 20 is required to be construed.
26. A non obstante clause must be given effect to the extent
Parliament intended and not beyond the same. It may be used as a
legislative device to modify the scope of provision or law mentioned in
the said clause. The non obstante clause would throw some light as to the
scope and ambit of the enacting part in case of its ambiguity. But if the
enacting part is clear, its scope cannot be cut down or enlarge by resorting
to non obstante clause.
27. In our view, considering the scheme of the Act of 1984 and the
object and purpose for its enactment, largely the Act is procedural in
nature. The Act of 1984 provides for special forum to decide matrimonial
related disputes and prescribes for special rules and procedure. In this
context, the non obstante provision in Section 20 is required to be
construed.
28. We are of the view that considering the scheme of both the
enactments and the purpose behind amending the provisions of Section 28
(4) of the Act of 1955, it would not be appropriate to apply different period
of limitation, one in case of orders passed by the Family Courts and in
another by the regular Civil Courts. Such an approach would frustrate
very purpose of legislation.
29. For the reasons stated above, we hold that for an appeal filed
under sub-section (1) of Section 19 of the Family Courts Act, 1984, period
of limitation prescribed under sub-section (4) of Section 28 of the Hindu
Marriage Act, 1955 shall apply.
30. Reference is answered accordingly.
31. We record our appreciation for valuable assistance rendered to
us by the Amicus Curiae, learned Senior Counsel Shri Aspi Chinoy.
We also appreciate the assistance rendered to us by learned counsel
Shri Murtaza Najmi.
32. We direct the Registry to place the matter before the
appropriate court.
(NARESH H. PATIL,J.)
(R. D. DHANUKA, J.)
(SMT. SADHANA S. JADHAV,J.)