# W.P. No. 4019 of 2015 (M/S) Swapnil Verma & Anr v. Principal Judge, Family Court, Lucknow Opp. Party

- **Citation:** (2015) 2 ILRA 821
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-16
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/w-p-no-4019-of-2015-m-s-swapnil-verma-anr-v-principal-judge-family-court-43200
- **Pages:** 5

## Headnote

Hindu Marriage Act, 1956-Section-13(B)-
petitioner-seeking
-exemption
from
statutory period divorce petition on mutual
consent-Family Judge refused to pass any
order on merit ignoring statutory periodneither the Family Judge nor High Curt can
issue such direction-held-order passed by
Family Judge-justified.
Held: Para-15
It is clear from the judgments of the
Supreme Court reproduced herein above
that in curtailing the statutory period of six
months and granting a decree of divorce by
mutual consent, the Supreme Court has
exercised power under Article 142 of the
Constitution of India. This power is not
available to any other Court in the land,
including this Court. In Anil Kumar Jain v.
Maya Jain (supra), the Supreme Court has
clearly held, in no uncertain terms, that the
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 of
India. Neither can the High Court, nor the
Civil Court, can pass orders before the
period
prescribed
under
the
relevant
provisions of the Act, or on grounds not
provided for in Section 13 and 13-B of the
statute. This principle of law has been
reiterated by the Supreme Court in Manish
Goel v. Rohini Goel (supra).
Case Law discussed:
1995 Supp. (4) SCC 411; AIR 1999 Andhra
Pradesh 91; AIR 2005 Madhya Pradesh 106;
AIR 2005 Delhi 365; (2009) 10 SCC 415;
(2010) 4 SCC 393

## Text

2 All] Swapnil Verma & Anr. Vs. Principal Judge, Family Court, Lucknow
821
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.07.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR
ARORA, J.
W.P. No. 4019 of 2015 (M/S)
Swapnil Verma & Anr. ...Petitioners
Versus
Principal Judge, Family Court, Lucknow
...Opp. Party
Counsel for the Petitioners:
Ashish Bhatt , Anil Sharma and Desh Mitra
Anand
Counsel for the Opp. Party:
---
Hindu Marriage Act, 1956-Section-13(B)-
petitioner-seeking
-exemption
from
statutory period divorce petition on mutual
consent-Family Judge refused to pass any
order on merit ignoring statutory periodneither the Family Judge nor High Curt can
issue such direction-held-order passed by
Family Judge-justified.
Held: Para-15
It is clear from the judgments of the
Supreme Court reproduced herein above
that in curtailing the statutory period of six
months and granting a decree of divorce by
mutual consent, the Supreme Court has
exercised power under Article 142 of the
Constitution of India. This power is not
available to any other Court in the land,
including this Court. In Anil Kumar Jain v.
Maya Jain (supra), the Supreme Court has
clearly held, in no uncertain terms, that the
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 of
India. Neither can the High Court, nor the
Civil Court, can pass orders before the
period
prescribed
under
the
relevant
provisions of the Act, or on grounds not
provided for in Section 13 and 13-B of the
statute. This principle of law has been
reiterated by the Supreme Court in Manish
Goel v. Rohini Goel (supra).
Case Law discussed:
1995 Supp. (4) SCC 411; AIR 1999 Andhra
Pradesh 91; AIR 2005 Madhya Pradesh 106;
AIR 2005 Delhi 365; (2009) 10 SCC 415;
(2010) 4 SCC 393
(Delivered by Hon'ble Dr. Devendra
Kumar Arora, J.)
1.
Heard learned counsel for the
petitioners and perused the record.
2.
According to the petitioners, their
marriage was solemnized on 17.6.2010 as
per Hindu rites and rituals at Madhuban
Marriage Hall Mohan Road, Lucknow and
after marriage, they lived together for
sometime and from the wedlock, a baby,
namely, Aaradhya, was born, who is at
present 5 years old. In the year 2012, due to
some quarrel, petitioner No.2-Anjali Verma
lodged an FIR against the petitioner No.1.-
Swapnil Verma, which was registered as
Case Crime No. 302/12 under Sections 498
IPC and 3/4 of the Dowry Prohibition Act at
police station Sikanderpur district Ballia and
since then, petitioners are living separately.
3. It has been stated by the
petitioners that since they did not
cohabitated so long and further it is
impossible for them to live together,
therefore, they decided to enter into
compromise to take divorce by mutual
consent and filed a petition before the
competent court. In these backgrounds, on
2.7.2015, petitioners have filed a suit for
mutual divorce under Section 13 (B) of
the Hindu Marriage Act, 1955 before the
Principal Judge, Family Court, Lucknow,
822
 INDIAN LAW REPORTS ALLAHABAD SERIES
which was registered as Suit No. 1553 of
2012 but the opposite party-Principal
Judge, Family Court, Lucknow, has fixed
the suit for 3.1.2016. Therefore, the
petitioner is constrained to approach this
court by filing the present writ petition,
seeking a writ in the nature of mandamus
directing the opposite party to conclude
the suit No. 1553 of 2012 for mutual
divorce filed under Section 13 (B) of
Hindu Marriage Act, 1955 : Swapnil
Verma and Anjali Verma, expeditiously.
4. Submission of the learned counsel
for the petitioners is that there is no
chance of conciliation between the
petitioners and as such, it will be justified
to issue decree of divorce expeditiously
preferably in case of similarly aged
persons like petitioners but the opposite
party has fixed the suit in the month of
January, 2016. His submission is that
since the relationship of the petitioners are
not recoverable, therefore, a decree of
mutual divorce ought to have been passed
by the opposite party on waiving off the
statutory period as provided under Section
13 (B) of the Act but the opposite party
has fixed the suit for hearing on 3.1.2016.
5. To strengthen his arguments,
learned counsel for the petitioner has
placed reliance upon the cases reported in
1995 Supp. (4) SCC 411 : Payal Jindal
(Mrs) Vs. A.K. Jindal; AIR 1999 Andhra
Pradesh 91 : In Re: Grandhi Venkata
Chitti Abbai and another; AIR 2005
Madhya Pradesh 106 : Dineshkumar
Shukla Vs. Smt. Neeta; AIR 2005 Delhi
365 : Ms. Anita Sharma and another Vs.
Nil
6. I have heard learned counsel for
the petitioner and perused the record.
7. A short point for decision in this
writ petition is whether this Court under
Article 227 of the Constitution of India
has power to direct the Principal Judge,
Family Court, Lucknow to decide Suit
No. 1553 of 2012, which has been filed
by the petitioners for mutual divorce
under Section 13 (B) of the Hindu
Marriage Act, by waiving off the statutory
period as provided under Section 13 (B)
of the Act.
8. At this juncture, reference may be
made to the provisions of Section 13B of
the Act and the same is reproduced
hereinbelow :
"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
2 All] Swapnil Verma & Anr. Vs. Principal Judge, Family Court, Lucknow
823
marriage to be dissolved with effect from
the date of the decree."
9. A bare perusal of the provisions
of the aforesaid section makes it clear that
sub-section (1) of section 13B is the
enabling section for presenting a petition
for dissolution of a marriage by a decree
of divorce by mutual consent. One of the
grounds provided is that the parties should
be living separately for a period of one
year or more and that they have not been
able to live together. Sub-section (2) of
Section 13B, however, provides the
procedural steps that are required to be
taken once the petition for mutual divorce
has been filed and six months have
expired from the date of presentation of
the petition before the Court. From further
perusal of the aforesaid provision of the
Act, it also comes out that on a motion of
both the parties made not earlier than six
months after the date of presentation of
the petition referred to in Sub-section (1)
and not later than 18 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,
pass a decree of divorce declaring the
marriage to be dissolved with effect from
the date of the decree.
10. From the analysis of the Section
13-B, 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 party
to the joint motion under sub-section (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.
11. In Anil Kumar Jain v. Maya
Jain, reported in (2009)10 SCC 415, the
Supreme Court has held that it has power
under Article 142 of the Constitution of
India to convert proceedings under
Section 13 of the Hindu Marriage Act,
1955, into one under Section 13-B and
grant a decree for mutual divorce without
waiting for the statutory period of six
months, by applying the doctrine of
irretrievable break-down of marriage.
However,
the
Apex
Court
has
categorically held, in no uncertain terms,
that except for the Supreme Court, no
High Court or Civil Court has the power
to grant relief by invoking the doctrine of
irretrievable break-down of marriage.
This is what the Supreme Court has held:
"28. It may, however, be indicated
that in some of the High Courts, which do
not possess the powers vested in the
Supreme Court under Article 142 of the
Constitution, this question had arisen and
it was held in most of the cases that
despite the fact that the marriage had
broken down irretrievably, the same was
not a ground for granting a decree of
divorce either under Section 13 or Section
13-B of the Hindu Marriage Act, 1955.
29. In the ultimate analysis the
aforesaid discussion throws up two
propositions. The first proposition is that
although irretrievable break-down of
marriage is not one
of the grounds
indicated whether under Sections 13 or
13-B of the Hindu Marriage Act, 1955,
824
 INDIAN LAW REPORTS ALLAHABAD SERIES
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
grounds not provided for in Section 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)
12. The above principles of law are
reiterated by the Supreme Court in
Manish Goel v. Rohini Goel, reported in
(2010) 4 SCC 393, in the following terms:
"12. In Anjana Kishore v. Puneet
Kishore, this Court while allowing a
transfer petition directed the Court
concerned to decide the case of divorce
by mutual consent, ignoring the statutory
requirement of moving the motion after
expiry of the period of six months under
Section 13-B(2) of the Act. In Anil
Kumar Jain, this Court held that an order
of waiving the statutory requirements can
be passed only by this Court in exercise of
its powers under Article 142 of the
Constitution. The said power is not vested
with any other court.
13. However, we have also noticed
various judgments of this Court taking a
contrary view to the effect that in case the
legal ground for grant of divorce is
missing,
exercising
such
power
tantamounts to legislation and thus
transgression of the powers of the
legislature, which is not permissible in
law (vide Chetan Dass v. Kamla Devi and
Vishnu Dutt Sharma v. Manju Sharma).
14.
Generally,
no
Court
has
competence to issue a direction contrary
to law nor the Court can direct an
authority to act in contravention of the
statutory provisions. The courts are meant
to enforce the rule of law and not to pass
the orders or directions which are contrary
to what has been injected by law. (Vide
State of Punjab v. Renuka Singla, State of
U.P. v. Harish Chandra, Union of India v.
Kirloskar
Pneumatic,
University
of
Allahabad v. Dr. Anand Prakash Mishra
2 All] Smt. Umman Bibi Vs. Board of Revenue U.P. Lucknow & Ors.
825
and Karnataka SRTS v. Ashrafulla
Khan)."
13. The ratio of the judgments in
Anil Kumar Jain v. Maya Jain (supra) and
Manish Goel v. Rohini Goel (supra), is
that the order of waiving the statutory
requirements can only be passed by the
Supreme Court in exercise of its power
under Article 142 of the Constitution of
India and that such power is not vested in
any other Court.
14. In the background of the above
legal position propounded by the Supreme
Court, I may now advert to the grounds
pleaded by the petitioners, in support of
their prayers to curtail the statutory period
of six months under Section 13-B(2) of
the Act, and to direct that the petition for
divorce by mutual consent be disposed of,
expeditiously. It has been averred in the
petition, and submitted by learned counsel
for the petitioners that the parties have not
been cohabiting with each other or
performing their marital obligations since
the year 2012. As the marriage has broken
down
irretrievably
and
both
the
petitioners have mutually agreed that it be
dissolved, the waiting period of six
months ought to be curtailed. In this
regard, reliance has been placed upon the
judgments of the Supreme Court and this
Court, quoted hereinabove.
15. It is clear from the judgments of
the Supreme Court reproduced herein
above that in curtailing the statutory
period of six months and granting a
decree of divorce by mutual consent, the
Supreme Court has exercised power under
Article 142 of the Constitution of India.
This power is not available to any other
Court in the land, including this Court. In
Anil Kumar Jain v. Maya Jain (supra), the
Supreme Court has clearly held, in no
uncertain terms, that the 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 of India.
Neither can the High Court, nor the Civil
Court, can pass orders before the period
prescribed under the relevant provisions
of the Act, or on grounds not provided for
in Section 13 and 13-B of the statute. This
principle of law has been reiterated by the
Supreme Court in Manish Goel v. Rohini
Goel (supra).
16. For the reasons aforesaid, I am of
the considered view that the grievance of
the petitioners for truncating the statutory
waiting period of six months envisaged
under Section 13-B(2) of the Act, for the
reason that their marriage has broken down
irretrievably, is, therefore, not within the
scope of adjudication of this Court,
considering that such power can be
exercised only by the Apex Court under
Article 142 of the Constitution of India.
17. So far as the judgments, which
have been relied upon by the learned
counsel for the petitioners, the same are of
no avail to the petitioners in the facts and
circumstances of the present case.
18. The writ petition is, therefore,
dismissed. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.07.2015
BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.
Misc. Single No. 4174 of 2015