Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th April, 2021.
+ W.P.(C) 3922/2021 & CM APPL. 11792/2021
KAVITA MALIK ..... Petitioner
Through: Ms. Juhi Arora, Advocate.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Sumit Jidani, Advocate for R-1
(M-9810664300)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through Video Conferencing.
2. The present petition has been filed by Ms. Kavita Malik, who was
married to Mr. Amit Malik on 8th February, 1997. Due to various reasons,
the parties did not wish to continue with the marriage and accordingly, they
agreed for dissolution of their marriage by mutual consent.
3. A Memorandum of Understanding was arrived at between the parties
on 30th November, 2019 by which various terms and conditions were
agreed upon by the parties. The first motion petition for divorce by mutual
consent was filed on 11th March, 2020. However, owing to the lockdown,
physical hearing was not held in the first motion.
4. The Family Court thereafter listed the matter for 20th July, 2020 on
which date, the statements of the parties in the first motion were recorded
and the following order was passed:
W.P.(C) 3922/2021 Page 1 of 11
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
“ Efforts for reconciliation have been made if the
parties can reside together but both the petitioners have
submitted that they cannot reside together and have
mutually and amicably decided to part ways to take
divorce. Considered.
Joint statement of both the petitioners have been
recorded separately and both the petitioners have been
identified by their counsel. Both the parties are directed
to file their original documents and also to submit the
signed copy of their statements recorded today, as per
the directions of the Hon'ble High Court after the
physical court functioning. Be put up for consideration
of the statements and further proceedings for
01.09.2020.”
5. Ld. counsel for the Petitioner submits that on the said date, the Family
Court had directed the Petitioner, after recordal of the statements, to file the
physically signed copies of the statements. According to her, as per the usual
practice in the family courts, the order on first motion was to be passed on
the file upon filing of physical copies. Since the physical copies were filed
within a period of two days duly verified by the respective counsels for the
parties and no intimation was given by the Court that the first motion is not
passed, all parties and counsels were under the impression that the order on
first motion was passed.
6. On the basis of this understanding, the parties through their counsels
filed On 17th November, 2020, the Petitioner moved an application seeking
waiver of the cooling off period of six months in terms of the judgment of
the Supreme Court in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC
746. In the application for second motion, an averment was made to the
following effect:
W.P.(C) 3922/2021 Page 2 of 11
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
“12. That in terms of the settlement between the
parties, the first motion divorce petition was filed in
17/03/2020 and the same allowed by the Hon’ble
Court vide order dated 20/07/2020. A copy of Order
Dated 20/07/2020 is annexed herewith and marked as
ANNEXURE P-5.”
The order on the first motion was to be Annexure P-5 in the second motion
application. Instead of filing the order, the application for certified copy of
the order on first motion was annexed. The parties however, never received
the order on the first motion.
7. The second motion was listed on 21st November, 2020, however, the
matter continued to be adjourned from time to time. Finally, on 10th March
2021, the second motion was taken up and objections were raised by the
Court that the certified copy of the order on the first motion was not filed.
The Petitioner applied for the verified copy of the order on the first motion
but was not supplied the same. She, accordingly, re-applied for obtaining a
copy of the said order. Finally, on 16th March, 2021, it was realised that a
certified copy could not be issued as the order on the first motion itself was
not passed.
8. The grievance of the Petitioner is that the Petitioner is a 45 year old
lady who had entered into a Memorandum of Understanding with her
husband and the various terms and conditions which were to be abided by
the parties were given effect to. Both parties are living separately since 2nd
June, 2018 but are being forced to continue their marriage. All future plans
of the parties have been put on hold and these facts have not been
appreciated by the Family Court which has acted with complete callousness
in not recording the order on the first motion.
W.P.(C) 3922/2021 Page 3 of 11
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
9. Vide order dated 24th March, 2021, this Court had called for the
lower court record, including the physical record. The physical record has
been sent to the Court. A perusal of the physical record shows that the
matter was taken up by Ms. Barkha Gupta, Judge, Family Court (North),
Rohini District, New Delhi since inception i.e., 18th March, 2020 as also on
20th July, 2020. The order of 20th July 2020 specifically records that the
joint statement of the Petitioners have been recorded. The physical record
also has signed copies of the statements by both parties, duly verified by
both the counsels for the parties as well. It is completely inexplicable as to
why the order on the first motion was not passed and whether there was any
formality to be completed by the parties, considering the fact that the
physical copy of their statement was already signed.
10. Since 20th July, 2020 till March, 2021, the parties have not been able
to obtain a copy of the said order due to the fact that the said order has never
been passed. Now, after almost 8 months, the precious time of the parties
has been lost and the clock is sought to be set back as the matter has been
listed for orders on the first motion tomorrow i.e., 17th April, 2021. The
parties have in fact moved for waiver of the cooling-off period which shows
that they had expressed urgency in the orders being passed expeditiously.
11. This Court has perused the judgments of the Supreme Court in
Amardeep Singh (supra) as also Devinder Singh Narula v. Meenakshi
Nangia, (2012) 8 SCC 580. The legal position on the waiver of the cooling-
off period of six months as also the purpose of filing of the first motion and
the second motion, has been settled by the Supreme Court in these two
judgements. The relevant paragraphs of the said judgments are set out
herein-below:
W.P.(C) 3922/2021 Page 4 of 11
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
Amardeep Singh v. Harveen Kaur,
(2017) 8 SCC 746
“16. We have given due consideration to the issue
involved. Under the traditional Hindu Law, as it
stood prior to the statutory law on the point,
marriage is a sacrament and cannot be dissolved
by consent. The Act enabled the court to dissolve
marriage on statutory grounds. By way of
amendment in the year 1976, the concept of
divorce by mutual consent was introduced.
However, Section 13-B(2) contains a bar to
divorce being granted before six months of time
elapsing after filing of the divorce petition by
mutual consent. The said period was laid down to
enable the parties to have a rethink so that the
court grants divorce by mutual consent only if
there is no chance for reconciliation.
17. The object of the provision is to enable the
parties to dissolve a marriage by consent if the
marriage has irretrievably broken down and to
enable them to rehabilitate them as per available
options. The amendment was inspired by the
thought that forcible perpetuation of status of
matrimony between unwilling partners did not
serve any purpose. The object of the cooling-off
period was to safeguard against a hurried decision
if there was otherwise possibility of differences
being reconciled. The object was not to perpetuate
a purposeless marriage or to prolong the agony of
the parties when there was no chance of
reconciliation. Though every effort has to be made
W.P.(C) 3922/2021 Page 5 of 11
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
to save a marriage, if there are no chances of
reunion and there are chances of fresh
rehabilitation, the Court should not be powerless
in enabling the parties to have a better option.
18. In determining the question whether provision
is mandatory or directory, language alone is not
always decisive. The court has to have the regard
to the context, the subject-matter and the object of
the provision. This principle, as formulated in
Justice G.P. Singh's Principles of Statutory
Interpretation (9th Edn., 2004), has been cited
with approval
in Kailash v. Nanhku [Kailash v. Nanhku, (2005) 4
SCC 480] as follows: (SCC pp. 496-97, para 34)
“34. … ‘The study of numerous cases on this topic
does not lead to formulation of any universal rule
except this that language alone most often is not
decisive, and regard must be had to the context,
subject-matter and object of the statutory provision
in question, in determining whether the same is
mandatory or directory. In an oftquoted passage
Lord Campbell said: “No universal rule can be
laid down as to whether mandatory enactments
shall be considered directory only or obligatory
with an implied nullification for disobedience. It is
the duty of courts of justice to try to get at the real
intention of the legislature by carefully attending
to the whole scope of the statute to be
considered.”’” (p. 338)
“‘For ascertaining the real intention of the
legislature’, points out Subbarao, J. ‘the court may
consider inter alia, the nature and design of the
statute, and the consequences which would follow
from construing it the one way or the other; the
impact of other provisions whereby the necessity of
complying with the provisions in question is
avoided; the circumstances, namely, that the
statute provides for a contingency of the non-
W.P.(C) 3922/2021 Page 6 of 11
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
compliance with the provisions; the fact that the
non-compliance with the provisions is or is not
visited by some penalty; the serious or the trivial
consequences, that flow therefrom; and above all,
whether the object of the legislation will be
defeated or furthered’. If object of the enactment
will be defeated by holding the same directory, it
will be construed as mandatory, whereas if by
holding it mandatory serious general
inconvenience will be created to innocent persons
without very much furthering the object of
enactment, the same will be construed as
directory.” (pp. 339-40)
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
W.P.(C) 3922/2021 Page 7 of 11
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
waiver of the waiting period for the second motion
will be in the discretion of the court concerned.
20. Since we are of the view that the period
mentioned in Section 13-B(2) is not mandatory but
directory, it will be open to the court to exercise its
discretion in the facts and circumstances of each
case where there is no possibility of parties
resuming cohabitation and there are chances of
alternative rehabilitation.
21. Needless to say that in conducting such
proceedings the court can also use the medium of
videoconferencing and also permit genuine
representation of the parties through close
relations such as parents or siblings where the
parties are unable to appear in person for any just
and valid reason as may satisfy the court, to
advance the interest of justice.”
Devinder Singh Narula v. Meenakshi Nangia,
(2012) 8 SCC 580
“2. Section 13-B itself provides for a cooling off
period of six months on the first motion being
moved, in the event the parties change their minds
during the said period. Accordingly, after the
initial motion and the presentation of the petition
for mutual divorce, the parties are required to wait
for a period of six months before the second
motion can be moved, and at that point of time, if
the parties have made up their minds that they
would be unable to live together, the court, after
making such inquiry as it may consider fit, grant a
decree of divorce declaring the marriage to be
dissolved with effect from the date of the decree.
…
12. It is quite clear from the materials on record
that although the marriage between the parties
was solemnised on 26-3-2011, within 3 months of
W.P.(C) 3922/2021 Page 8 of 11
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
the marriage the petitioner filed a petition under
Section 12 of the Hindu Marriage Act, 1955, for a
decree of nullity of the marriage. Thereafter, they
have not been able to live together and lived
separately for more than 1 year. In effect, there
appear to be no marital ties between the parties at
all. It is only the provisions of Section 13-B(2) of
the aforesaid Act which are keeping the formal ties
of marriage between the parties subsisting in name
only. At least the condition indicated in Section 13-
B for grant of a decree of dissolution of marriage
by mutual consent is present in the instant case. It
is only on account of the statutory cooling off
period of six months that the parties have to wait
for a decree of dissolution of marriage to be
passed.”
Both judgments make it clear that the time-period of six months for cooling
off can be waived by the Court under special circumstances. Moreover, in
the present case, the parties are living apart from 2018 and have also finally
settled their disputes. There is thus no reason as to why the Family Court did
not pass orders on the first motion after recording the statements of the
parties and after the physically signed copy was placed on record. Simply
adjourning the matter on the said date i.e., 20th July, 2020, without passing
orders on the first motion has resulted in turning the clock back for the
Petitioner.
12. The divorce, being one of mutual consent, the parties cannot be put to
such grave inconvenience due to the action of the Family Court which has
failed to pass orders on the first motion.
W.P.(C) 3922/2021 Page 9 of 11
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
13. Ms. Juhi Arora, ld. Counsel appears for the Petitioner and submits that
as per her information, in the Family Court, there are several cases where
orders on the first motion have not been passed.
14. Under these circumstances and owing to the settled legal position as
laid down by the Supreme Court in the aforementioned two judgments, the
following directions are issued:
i) the present Presiding Officer in the Family Court shall record
his satisfaction in respect of the statement recorded by the parties,
which are already on record.
ii) upon the present Presiding Officer recording his satisfaction,
orders on the first motion shall be passed by the Family Court. Since
passing of orders on the first motion is a consequence of the statement
recorded, upon recordal of the satisfaction, in order to ensure that the
parties are not put to any further inconvenience, the order on the first
motion would date back to 20th July, 2020.
iii) Insofar as the second motion is concerned, once the order on
the first motion, which shall date back to 20th July, 2020, is passed by
the present Presiding Officer, the Court would proceed to pass orders
on the second motion in accordance with law.
15. The ld. Registrar General shall look into the issue in respect of other
similar cases which may be pending before the Family Courts which are
awaiting orders on first motion, after statements of parties have been
recorded and file a report in this regard for appropriate orders.
16. The petition is disposed of in the above terms. All pending
applications are also disposed of.
W.P.(C) 3922/2021 Page 10 of 11
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:19.04.2021
22:07:36
17. List for receiving of the report on 1st July, 2021. Let the physical
copy of the lower court record be sent back.
PRATHIBA M. SINGH, J.
APRIL 16, 2021
Rahul/T
W.P.(C) 3922/2021 Page 11 of 11
