Hindu Marriage Act | Trial Court Must Wait 18 Months Before Dismissing Plea U/S 13B Even If Parties Trying To Reunite: Karnataka High Court

The Karnataka High Court has held that under Section 13B (2) of the Hindu Marriage Act, a couple seeking divorce had 18 months to report a settlement between them after filing the petition for divorce by mutual consent.

It further clarified that the trial court cannot on its own dismiss the petition without the request of the parties for such disposal.

A division bench of Justice K S Mudagal and Justice K V Arvind allowed an appeal and set aside the order of the trial court dismissing the petition, and directed the parties to appear before the Bengaluru Mediation Centre.

Further, it directed that mediation shall be held and the mediation report shall be submitted to the trial Court. On receipt of the report, it directed the trial court to proceed with the matter in accordance with the law and dispose of the petition as expeditiously as possible.

The appellants were married on 27.11.2020, and presented the petition for mutual divorce under Section 13B of the Act, claiming that their marriage was irretrievably broken down and they have been living separately since September 2021.

The appellants sought the dissolution of their marriage by mutual consent, and the trial Court referred the matter to the Mediation.

However, it was submitted that the parties could not settle the matter before the mediator as they were trying to settle it amongst themselves. This led to the Mediation Centre submitting a report to the trial court saying that the matter was not settled due to the absence of the parties.

Following this, it was argued that the trial court interacted with the parties who submitted that they were trying for a reunion. However, in its impugned order, the trial court recorded that the parties were not interested in proceeding with the case and dismissed the petition.

The appellant's counsel argued that the parties did not make such submissions and the trial Court observations were contrary to the submissions made by the parties. It was argued that the matter was deferred for some time, and abruptly the impugned order was passed.

The bench noted that the requirements to pass an order on the petition under Section 13B of the Act are as follows: (i) The parties should be living separately for a period of not less than one year preceding the petition. (ii) The parties have not been able to live together. (iii) They must have mutually agreed for dissolution of the marriage. (iv) The parties shall not move the matter before six months and beyond eighteen months of the presentation of the same.

Following this it held that in the present case, the petition was dismissed within nine months. Court noted that even if it was accepted that the parties submitted before the trial Court that they were trying for reunion then Section 13B(2) of the Act still required the trial Court to wait eighteen months to enable the parties to report the settlement.

Therefore it was held that the trial Court committed an error in dismissing the petition on its own without the request of the parties for such disposal.

“If the matter was returned from the Mediation Centre for non-appearance of the parties, the trial Court at least should have referred the matter again to the Mediation Centre without dismissing the petition abruptly. The trial Court has acted contrary to Section 13B(2) of the Act. Therefore, the impugned order is liable to be set aside and the matter requires to be remitted," it concluded.

Accordingly, it allowed the petition.

Appearance: Advocate Smitha N for Petitioners

Citation No: 2023 LiveLaw (Kar) 461

Case Title: Srishti Daiv & ANR AND NIL

Case No: MISCELLANEOUS FIRST APPEAL NO. 7146/2023

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