# Smt. Srabani Adhikari v. Vikas Adhikari

- **Citation:** (2012) 2 ILRA 939
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-08
- **Bench:** Devi Prasad Singh, Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-srabani-adhikari-v-vikas-adhikari-42309
- **Pages:** 4

## Headnote

Hindu Marriage Act, 1956-Section 19Appeal-against
order
passed
under
section
13-B-without
following
the
procedure contained therein without any
bona fide attempt for mediation under
section
89
C.P.C.-held-order
unsustainable-set-a-side.

Held: Para 7 and 8

In a suit filed for maintenance under the
Hindu Marriage Act or any other law time
being
enforced
it
shall
always
be
incumbent upon the trial court or family
court to adopt the recourse provided
under Section 89 of the CPC before
granting a decree of the suit filed for
divorce or dissolution of marriage. In the
present case, the family court without
following the procedure provided under
Section 13 B of the Act as well as
without applying mind in terms of
Section 89 of the CPC had decreed the
suit.

Apart from Section 89 of the CPC, "The
Family Courts Act, 1984 as well as rules
framed thereunder namely U.P. Family
Courts
Rules,
1995
contains
the
procedure with regard to conciliation.
While adjudicating the controversy with
regard to divorce even with regard to
maintenance it shall be obligatory on the
part of family court to make all efforts
with regard to conciliation or mediation
and convince the parties for settlement
of their dispute amicably. Breakage of
family
neither
fulfill
the
social
requirement nor it is just and fair in
social interest.

## Text

2 All] Smt. Srabani Adhikari V. Vikas Adhikari
939
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.08.2012

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE VISHNU CHANDRA GUPTA, J.

First Appeal No. - 46 of 2008

Smt. Srabani Adhikari
 ...Petitioner
Versus
Vikas Adhikari

 ...Respondents

Counsel for the Petitioner:
Sri Shailesh Kumar

Counsel for the Respondents:
Sri B.D. Misra
Sri B.D.Misra

Hindu Marriage Act, 1956-Section 19Appeal-against
order
passed
under
section
13-B-without
following
the
procedure contained therein without any
bona fide attempt for mediation under
section
89
C.P.C.-held-order
unsustainable-set-a-side.

Held: Para 7 and 8

In a suit filed for maintenance under the
Hindu Marriage Act or any other law time
being
enforced
it
shall
always
be
incumbent upon the trial court or family
court to adopt the recourse provided
under Section 89 of the CPC before
granting a decree of the suit filed for
divorce or dissolution of marriage. In the
present case, the family court without
following the procedure provided under
Section 13 B of the Act as well as
without applying mind in terms of
Section 89 of the CPC had decreed the
suit.

Apart from Section 89 of the CPC, "The
Family Courts Act, 1984 as well as rules
framed thereunder namely U.P. Family
Courts
Rules,
1995
contains
the
procedure with regard to conciliation.
While adjudicating the controversy with
regard to divorce even with regard to
maintenance it shall be obligatory on the
part of family court to make all efforts
with regard to conciliation or mediation
and convince the parties for settlement
of their dispute amicably. Breakage of
family
neither
fulfill
the
social
requirement nor it is just and fair in
social interest.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard learned counsel for the
appellant and learned counsel for the
respondents.

2. The present appeal has been
preferred under Section 19 of the Hindu
Marriage
Act
against
the
impugned
judgement and decree dated 13.2.2008
passed in Regular Suit No. 1236 of 2007.
An application under Section 13 B of the
Hindu Marriage Act was moved by the
appellant
before
the
Family
Court
Lucknow. Affidavits were filed by the
appellant and the respondents with regard to
mutual consent for divorce. It appears that
after receipt of application, Additional
Judge Family Court after hearing counsel
for the parties had passed the impugned
judgement and order dated 13.2.2003
without following the procedure contained
in Section 13 B of the Hindu Marriage Act.
For convenience, Section 13 B of the Hindu
Marriage Act is reproduced 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
940 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Amendment Act, 1976 , (68 of 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.]"

3. A plain reading of aforesaid
provision reveals that after receipt of
application under Section 13 B of the Act,
the Family Court shall fix a date not earlier
than six months but not later than eighteen
months, if the petition is not withdrawn in
the meantime. Thereafter, being satisfied,
after hearing the parties and after making
such inquiry as it thinks fit that 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.

4. In the present case, admittedly, the
procedure prescribed under Section 13 B of
the Hindu Marriage Act has not been
followed.
Petitioner's
counsel
further
submits that being illiterate lady she was not
aware about the application, moved before
the court. However, he submits that there is
no joint application was moved by the
parties whereby signature of appellant and
the respondents duly verified by the
lawyers. Certain other procedural illegality
or irregularity has been pointed out with the
allegation of commission of fraud. Even if,
no fraud was committed but fact remains
that the procedure prescribed under Section
13 B of the Hindu Marriage Act was not
followed.

5. A plain reading of the impugned
judgement reveals that the application was
moved under Section 13 B of the Hindu
Marriage Act. The family court should have
applied its mind to the contents of
application as well as provisions contained
in Section 13 B of the Hindu Marriage Act.
It is well settled proposition of law that
procedure prescribed by the Act or any
statutory provision must be followed by the
Courts while adjudicating a controversy.
Non-compliance of procedure provided by
legislature shall vitiate the judgement and
decree passed by the courts.

6. Safeguard provided by Section 13
B of the Hindu Marriage Act has got its
own object and reasons. The purpose
behind Clause 2 of Section 13 B of the Act
is to give reasonable time to the husband
and wife both to think over their drastic
steps with regard to separation from the
matrimonial life. The period of six months
provided under Section 13 B of the Hindu
Marriage Act also gives an opportunity to
the parties to give second look to their
decision taken with regard to separation and
divorce. Divorce in matrimonial is the last
recourse and before granting a decree of
divorce it shall always be incumbent upon
the Family Court not only to provide
reasonable opportunity to give a second
look with regard to decision taken by the
parties for mutual consent but also as far as
possible take necessary steps to save
2 All] Smt. Srabani Adhikari V. Vikas Adhikari
941
matrimonial bond by dialogue or through
mediation. Divorce become more serious
event in a persons life when the married
couple has got children and whose future
and career rests on the shoulder of their
parents, who are fighting with each other
and proceeding for divorce without any
effort for amicable settlement. Legislature
to their wisdom has amended CPC and
introduced Section 89 which is reproduce as
under:-

" [89. Settlement of disputes outside
the Court.

(1) Where it appears to the court that
there exist elements of a settlement which
may be acceptable to the parties, the court
shall formulate the terms of settlement and
give them to the parties for their
observations and after receiving the
observation of the parties, the court may
reformulate the terms of a possible
settlement and refer the same for-

(a) arbitration;

(b) conciliation

(c)
judicial
settlement
including
settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute had been referred-

(a) for arbitration or conciliation, the
provisions
of
the
Arbitration
and
Conciliation Act, 1996 shall apply as if the
proceedings for arbitration or conciliation
were referred for settlement under the
provisions of that Act.

(b) to Lok Adalat, the court shall refer
the same to the Lok Adalat in accordance
with the provisions of sub-section (1) of
section 20 of the Legal Services Authority
Act, 1987 and all other provisions of that
Act shall apply in respect of the dispute so
referred to the Lok Adalat;

(c) for judicial settlement, the court
shall refer the same to a suitable institution
or person and such institution or person
shall be deemed to be a Lok Adalat and all
the provisions of the Legal Services
Authority Act, 1987 shall apply as if the
dispute were referred to a Lok Adalat under
the provisions of that Act;

(d) for mediation, the court shall effect
a compromise between the parties and shall
follow
such
procedure
as
may
be
prescribed.]

7. In compliance of Section 89 of the
CPC it shall be necessary for the court to
apply mind with regard to settlement of
dispute outside the court. Out of the
different procedure provided by Section 89
of the CPC, the conciliation, mediation or
lok adalat are the common procedure which
are being adopted by court to settle the
dispute outside the court. In a suit filed for
maintenance under the Hindu Marriage Act
or any other law time being enforced it shall
always be incumbent upon the trial court or
family court to adopt the recourse provided
under Section 89 of the CPC before
granting a decree of the suit filed for
divorce or dissolution of marriage. In the
present case, the family court without
following the procedure provided under
Section 13 B of the Act as well as without
applying mind in terms of Section 89 of the
CPC had decreed the suit.

8. Apart from Section 89 of the CPC,
"The Family Courts Act, 1984 as well as
rules framed thereunder namely U.P.
Family Courts Rules, 1995 contains the
procedure with regard to conciliation. While
adjudicating the controversy with regard to
942 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
divorce even with regard to maintenance it
shall be obligatory on the part of family
court to make all efforts with regard to
conciliation or mediation and convince the
parties for settlement of their dispute
amicably. Breakage of family neither fulfill
the social requirement nor it is just and fair
in social interest.

9. In view of above, appeal deserves
to be allowed. Accordingly, impugned
judgement and decree dated 13.2.2008 is set
aside. The matter is remitted back to the
family court concerned. The family court
shall decide the case afresh in accordance
with law keeping in view the observation
made hereinabove expeditiously, say within
a period of six months.

10. Appeal is allowed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 25704 of 2007

Mithru & Others

 ...Petitioner
Versus
Commissioner
Azamgarh
Division,
Azamgarh & Others
 ...Respondents

Counsel for the Petitioner:
Sri Govind Krishna

Counsel for the Respondents:
C.S.C.
Sri A.P. Singh
Sri Anuj Kumar
S.C.

U.P.Z.A & L.R. Act Rules-Rules-115-ACancellation of Patta-application filed
after
15
years-on
ground
the
construction not made within 3 years
whereas
the
constructions
were
demolished-being found in contravention
of U.P. Roadside Land Control Act 1945held-such order will not deprive the
petitioner from his ownership-however
petitioner restrained from raising any
construction on the part of land where
demolition made.

Held: Para 5

Application for cancellation having been
filed after about 15 years of allotment
was liable to be dismissed on this ground
alone. If under U.P. Road Side Land
Control Act order of demolition was
passed in respect of construction made
on part of the allotted land then it only
meant that petitioners were not entitled
to
make
construction
thereupon,
however, such order does not amount to
depriving the person concerned of his
ownership. Question of ownership in
proceedings under U.P. Road Side Land
Control Act is wholly irrelevant.

(Delivered by Hon'ble Sibghat Ullah Khan, J.)

1. Heard Sri Govind Krishna,
learned counsel for the petitioners and
Sri A.P. Singh, learned counsel for the
respondent No.3 and learned standing
counsel for respondents No.1, 2 and 4.

2. This Writ Petition is directed
against order dated 07.11.2002 passed
by Collector/ D.M. Azamgarh in Case
No.22 under Section 122-B/ Rule 115-P
of U.P.Z.A. & L.R., Act and Rules. The
said case was initiated on the complaint
of Asfaq Ahmad, the respondent No.3.
Through the impugned order allotment
of
land
by
Gaon
Sabha/
Land
Management Committee in favour of
the petitioner No.1 and father of
petitioners made in the year 1966-67
was cancelled. A small piece of land
had been allotted for constructing