While taking a very strong, sensible and principled stand, the Lucknow Bench of Allahabad High Court has in an extremely commendable, courageous, composed, cogent and convincing judgment titled Anamika Srivastava v. Anoop Srivastava in First Appeal No. 30 of 2022 and cited in 2022 LiveLaw (AB) 267 that was finally delivered on May 27, 2022 observed forthrightly that the Court is not supposed to act in a mechanical manner and force the parties to engage in mediation where the marriage has irretrievably broken down. The Bench of Justice Rakesh Srivastava and Justice Ajai Kumar Srivastava-I further stressed that reference of the parties to mediation is not compulsorily required where the facts and circumstances of the case showcase that no purpose would be served out of such reference. The Court made these significant observations in light of Section 9 of the Family Courts Act which casts a duty upon the Family Court to make efforts for settlement. The Court opined emphatically that the endeavour to get the matter settled is compulsory, but the reference to mediation by the Family Court itself is not.
At the outset, the Division Bench of Lucknow Bench of Allahabad High Court comprising of Hon’ble Justice Rakesh Srivastava and Hon’ble Justice Ajai Kumar Srivastava sets the pitch in motion of this brief, brilliant, bold and balanced judgment by first and foremost putting forth in para 1 that, “This first appeal under Section 19 of the Family Courts Act, 1984 has been filed challenging the orders dated 02.02.2022 and 07.03.2022 passed by the Family Court (Principal Judge, Family Court, Barabanki) rejecting the prayer made by the Appellant and the Respondent to waive the minimum period of six months stipulated under Section 13-B(2) of the Hindu Marriage Act, 1955 (for short ‘the Act’) for a motion for passing a decree of divorce on the basis of mutual consent.”
To put things in perspective, the Bench then envisages in para 2 that, “Anamika Srivastava, the Appellant, was married to Anoop Srivastava, the Respondent, according to Hindu rites and rituals at Barabanki on 17.06.2010. Soon after the marriage, differences arose between them to such an extent that the Appellant left her matrimonial home on 24.09.2010 and since then she has been living with her parents. On 01.05.2013, the Appellant moved an application under Section 125 CrPC against the Respondent before the Family Court. The said case was registered as Criminal Misc. Case No. 258 of 2013 (Anamika Srivastava vs. Anoop Srivastava). On 03.10.2018, the Family Court allowed the application moved by the Appellant and directed the Respondent to pay a sum of Rs. 5000/- (Rupees five thousand only) per month to the Appellant towards maintenance with effect from the date of judgment. The judgment and order dated 03.10.2018 was assailed by the Respondent before this Court in Criminal Revision No.10 of 2019.”
As it turned out, the Bench then observes in para 3 that, “This Court vide its order dated 08.09.2021, passed in the said criminal revision, referred the matter to the Mediation and Conciliation Centre of this Court to explore the possibility of an amicable settlement between the parties. The mediation was successful. The Appellant and the Respondent agreed to dissolve their marriage. It was agreed that the Respondent shall pay a sum of Rs. 4,25,000/- (Rupees four lacs twenty five thousand only) to the Appellant towards full and final settlement of all disputes and the litigation between them whether civil or criminal will terminate. In terms of the settlement arrived at between the parties, the Respondent paid a sum of Rs. 3,00,000 (Rupees three lacs only) to the Appellant and on 13.01.2022 the parties jointly filed an application under section 13-B of the Act before the Family Court for dissolution of their marriage. The said case was registered as Regular Suit No.56 of 2022, Smt. Anamika Srivastava v. Anoop Srivastava. A copy of the settlement agreement dated 30.03.2022 signed by the Appellant, the Respondent, their counsel and the mediator has been brought on record as annexure no. SA-2 to the supplementary affidavit dated 12.04.2022.”
Briefly stated, the Bench then notes in para 4 that, “On 13.01.2022 the Family Court passed an order, whereby the petition for divorce moved by the Appellant was ordered to be registered. 02.07.2022 was the date fixed for second motion and in the meantime the parties were directed to appear before the mediation centre on 14.02.2022.”
In brief, the Bench then also points out in para 5 that, “On 02.02.2022 the Appellant and the Respondent jointly moved an application before the Family Court under Section 13- B(2) of the Act, seeking waiver of six months waiting period to make a motion for the court to pass decree of divorce on the ground that the mediation between the parties had already taken place before the mediation centre of this Court wherein the parties had agreed to dissolve their marriage by mutual consent and, as such, there was no occasion for the second mediation. The said application was rejected by the Family Court.”
In short, the Bench then discloses in para 6 that, “On 07.03.2022 the parties again moved an application for waiving the statutory period of six months for second motion. It was inter alia said in the said application that parties had been living separately for more than ten years; that before the Mediation Centre of this Court the parties freely on their own accord, without any coercion or pressure, have arrived at a joint settlement. In the circumstances, six month waiting period be waived and a decree of divorce be passed forthwith. By an order dated 07.03.2022 the said application has been rejected by the Family Court on the ground that in terms of the order passed in the said case, the parties had not appeared before the mediation centre and, as such, there was no good ground to waive the statutory period of six months.”
It deserves mentioning that the Bench then reveals in para 7 that, “The orders dated 02.02.2022 and 07.03.2022 are under challenge in this appeal.”
To be sure, the Bench then states in para 12 that, “The three ingredients for initiating proceedings under Section 13-B of the Act for divorce by mutual consent are: firstly, that the parties to the marriage have been living separately for a minimum period of one year. Secondly, they have not been able to live together, and thirdly, they have mutually agreed that marriage should be dissolved.”
Be it noted, the Bench then specifies in para 13 that, “Sub-section (1) of Section 13-B of the Act is an enabling section. It enables the parties to file a petition for divorce by mutual consent. Sub-section (2) of Section 13-B lays down the procedure for the parties to adhere to after expiry of six months from the date of filing of the petition for divorce by mutual consent. The second motion, which as per Sub-section (2) of Section 13-B is to be made not earlier than six months after the date of presentation of the petition, enables the court to proceed with the case. If the court is satisfied that the consent of the parties was not obtained by force, fraud or undue influence and they mutually agree that the marriage should be dissolved, the court is left with no other option but to pass a decree of divorce.”
It must also be noted that the Bench then mentions in para 14 that, “Sub-section (2) of Section 13-B of the Act, in unequivocal terms, provides that the second motion has to be made not earlier than six months from the date of presentation of the petition before the Court.”
We cannot be oblivious that the Bench then clearly states in para 15 that, “Section 14 of the Act provides that notwithstanding anything contained elsewhere in the Act, it shall not be competent to the Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless on the date of presentation of the petition, one year had elapsed since the date of marriage. However, the proviso to Section 14 provides that the Court may, on application made to it, in accordance with such rules as may be made by the High Court, allow a petition to be presented before one year has elapsed since the date of marriage, on the ground that the case is one of exceptional hardship to the Appellant or of exceptional depravity on the part of the respondent.”
It is worth noting that the Bench then points out in para 16 that, “The provisions of the Hindu Marriage Act evince an inherent respect for the institution of marriage, which contemplates the sacramental union of a man and a woman for life. However, there may be circumstances in which it may not reasonably be possible for the parties to the marriage to live together as husband and wife. The Act, therefore has provisions for annulment of marriage in specified circumstances, which apply to marriages which are not valid in the eye of law and provisions of judicial separation and dissolution of marriage by decree of divorce on grounds provided in Section 13(1) of the said Act, which apply to cases where it is not reasonably possible for the parties to a marriage to live together as husband and wife.”
Notably, the Bench then reveals in para 17 that, “Section 13-B incorporated in the Act with effect from 27.5.1976, which provides for divorce by mutual consent, is not intended to weaken the institution of marriage. Section 13-B puts an end to collusive divorce proceedings between spouses, often undefended, but time consuming by reason of a rigmarole of procedures. Section 13-B also enables the parties to a marriage to avoid and/or shorten unnecessary acrimonious litigation, where the marriage may have irretrievably broken down and both the spouses may have mutually decided to part. But for Section 13-B, the defendant spouse would often be constrained to defend the litigation, not to save the marriage, but only to refute prejudicial allegations, which if accepted by Court, might adversely affect the defendant spouse.”
Practically speaking, the Bench rightly enunciates in para 18 that, “Legislature has, in its wisdom, enacted Section 13-B(2) of the Act to provide for a cooling period of six months from the date of filing of the divorce petition under Section 13-B(1), in case the parties should change their mind and resolve their differences. After six months if the parties still wish to go ahead with the divorce, and make a motion, the Court has to grant a decree of divorce declaring the marriage dissolved with effect from the date of the decree, after making such enquiries as it considers fit.”
While citing the relevant case law, the Bench then states in para 19 that, “Prior to the judgment in Amardeep Singh (Supra), subsection (2) was treated to be mandatory in nature. In Neeti Malviya v. Rakesh Malviya, (2010) 6 SCC 413, a Bench of two Judges of the Apex Court, while dealing with the question as to whether the period prescribed in Sub-section (2) of Section 13-B of the Act could be waived off or reduced by the Apex Court in exercise of its jurisdiction under Article 142 of the Constitution, observed as under:
“7. As already stated, the language of the said provision is clear and prima facie admits of no departure from the time-frame laid down therein i.e. the second motion under the said sub-section cannot be made earlier than six months after the date of presentation of the petition under sub-section (1) of Section 13-B of the Act.””
Of course, the Bench then hastens to add in para 20 that, “However, in Amardeep Singh (supra), the Apex Court considered the question as to whether the minimum period of six months stipulated under Section 13-B(2) of the Act for a motion for passing decree of divorce on the basis of mutual consent was mandatory or it could be relaxed in any exceptional situations and after taking into account the statutory provisions and the judgment on the issue for the first time opined that the statutory period of six months specified under sub-section (2) of Section 13-B of the Act was not mandatory and the court, in exceptional circumstances, can waive the same, subject to certain conditions specified therein. Paragraph 19 of the said report is extracted below:
“19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following:
(i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself;
(ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
(iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned.” (emphasis supplied).”
Quite pertinently, the Bench then clarifies in para 21 that, “Thus, as held by the Apex Court in the case of Amardeep Singh, the period mentioned under Section 13-B(2) of the Act is not mandatory but directory. It is open to the Court concerned to exercise its discretion in the facts and circumstances of each case. However, the discretion to waive statutory period of six months is a guided discretion for consideration of interest of justice where there is no chance of reconciliation and the parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13-B(2) of the Act.”
While citing a very recent and relevant case law, the Bench then envisages in para 22 that, “In Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270, the Apex Court enumerated some of the factors which are to be taken into consideration while exercising the discretion of waiving the statutory period of six months for moving a motion for divorce and observed as under:-
“27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B(2) of the Hindu Marriage Act, the Court would consider the following amongst other factors : –
i. the length of time for which the parties had been married;
ii. how long the parties had stayed together as husband and wife;
iii. the length of time the parties had been staying apart;
iv. the length of time for which the litigation had been pending;
v. whether there were any other proceedings between the parties;
vi. whether there was any possibility of reconciliation;
vii. whether there were any children born out of the wedlock;
viii. whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc.””
No doubt, the Bench rightly states in para 24 that, “Sub-section (3) of Section 23 of the Act further provides for methods to facilitate the process, which reads as follows:
“23. (3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court, as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.” (emphasis supplied).”
Needless to say, the Bench then adds in para 25 that, “The Family Courts Act was introduced with the avowed object to set up Family Courts for the settlement of family disputes, where emphasis was to be laid on conciliation and achieving socially desirable results without adherence to rigid rules of procedure and evidence.”
It deserves noting that the Bench then lays bare in para 26 stating that, “Section 9 of the Family Courts Act makes it obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings are informal and the rigid rules of procedure do not apply. The said provision reads as follows:
“9. Duty of Family Court to make efforts for settlement.— (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.” (emphasis supplied).”
Most significantly, the Bench then holds in no uncertain terms in para 27 that, “No doubt Section 9 of the Family Courts Act casts an obligation upon the Family Court to make efforts for settlement. However, the Court is not supposed to act in a mechanical manner, and force the parties to engage in mediation where the marriage has irretrievably broken down. Section 9 itself states that the Court is required to make an endeavor to assist and persuade the parties to arrive at a settlement. It also says that this has to be done in consistence with the nature and circumstances of the case. Therefore, it is clear that reference of the parties to mediation is not compulsorily required where the facts and circumstances of the case showcase that no purpose would be served out of such reference. The endeavor to get the matter settled is compulsory, but the reference to mediation by the Family Court itself is not.”
While referring to relevant case laws, the Bench then states in para 28 that, “At this juncture, it is relevant to support the above conclusion by making reference to certain extracts of a judgment of the Apex Court in Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, wherein a three Judge Bench of the Apex Court observed as under:
“72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.
74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.
86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.” (emphasis supplied).”
Most forthrightly, the Bench then while citing the concerned case law states in para 29 that, “In the case of Amit Kumar (Supra) the Apex Court has observed where marriage between the parities has irretrievably broken down and the parties have mutually opted to part ways, it is better to dissolve the marriage. Paragraphs 18 and 19 of the report are extracted below:-
“18. The object of Section 13B(2) read with Section 14 is to save the institution of marriage, by preventing hasty dissolution of marriage. It is often said that “time is the best healer”. With passage of time, tempers cool down and anger dissipates. The waiting period gives the spouses time to forgive and forget. If the spouses have children, they may, after some time, think of the consequences of divorce on their children, and reconsider their decision to separate. Even otherwise, the cooling period gives the couple time to ponder and reflect and take a considered decision as to whether they should really put an end to the marriage for all time to come.
19. Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filing of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage. Thus, if the marriage has broken down irretrievably, the spouses have been living apart for a long time, but not been able to reconcile their differences and have mutually decided to part, it is better to end the marriage, to enable both the spouses to move on with the life.” (emphasis supplied).”
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Most commendably, the Bench then while taking a practical and pragmatic stand points out in para 30 that, “In the case at hand both the parties are well educated. Admittedly, the parties lived together only for three months and after which they have separated on account of irreparable differences. The parties have lived apart for more than eleven years. The parties have appeared before the Mediation and Conciliation Centre of this Court and have settled their dispute amicably. The parties are unwilling to live together as husband and wife. Even after eleven years of separation the parties still want to go for divorce. Considering that the parties had already engaged in mediation before the Mediation Centre of this Court, and had failed to reconcile, no purpose would be served by subjecting the parties to the same process again, especially when they have been living apart for several years, and the marriage has irretrievably broken down. No useful purpose would be served in keeping the petition pending except to prolong their agony.”
Precisely stated, it is then stated in para 31 that the appeal is allowed.
In addition, the Bench then directs in para 32 that, “The impugned orders dated 02.02.2022 and 07.03.2022 passed by the Family Court are set aside. The statutory waiting period of six months under Section 13-B(2) of the Act is waived.”
Finally, the Bench then concludes by directing in last para 33 that, “Parties are directed to appear before the Family Court on 30.05.2022. The Family Court will forthwith pass a decree of divorce in accordance with law.”
In sum, the Division Bench of Lucknow Bench of Allahabad High Court has exhaustively dealt on why courts are not supposed to force parties to engage in mediation where marriage has irretrievably broken down. There is no reason to differ with what the Court has held. Of course, all courts must always abide by what has been laid down in this leading case!