The Gujarat High Court has found no illegality in one Family Court order whereby it refused to waive Six Months cooling off period for a Mutual Consent Divorce.
The single-Judge Bench of Justice A. C. Joshi observed that the Family Court has rightly passed the order refusing to waive off the cooling period as it has no special powers to exercise under the Constitution of Indian and that a parrallel to Supreme Court is irrational.
Brief Facts of Case
The petitioner herein had moved the High Court under Articles 14, 226, and 227 of the Constitution of India challenging the order passed by the Family Court Judge dismissing an Application filed praying to waive off the cooling period of 6 months in divorce proceedings.
The petitioners was solemnized started living separately 12 days after the marriage was solemnized due to personal differences and all efforts for reconciliation were in vain.
They have therefore, with mutual consent, filed for Divorce. Both the Petitioners have entered into a Memorandum of Understanding for mutual divorce and that as per the said MoU, the Petitioners have agreed to withdraw all the criminal cases filed against each other. The learned Family Judge has sent the Petitioners for mediation, however the same failed.
The Family Court dismissed the petition filed for waiving Six Months cooling off period.
Learned Advocate for the Petitioners has submitted that the learned Family Court Judge has failed to exercise the jurisdiction in favour of the Petitioners vested in it under the provisions of the Hindu Marriage Act, 1955 by misinterpreting the law laid down by the Hon’ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur, 2017 Latest Caselaw 664 SC as well as in the case of Amit Kumar v. Suman Beniwal.
High Court Observation
The Court observed that is no error in the order passed by the learned Judge of Family Court. At the outset it stated that this petition is filed under Article 227 of the Constitution of India and exercise of powers under such Article is imperatively spare and cited wherein the Apex Court has considered in detail the Scope of interference by this Court that, Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle.
"The learned Judge, Family Court, Ahmedbad has rightly observed that, admittedly, the marriage of Petitioners was solemnized on 8.12.2020 and they hardly lived for 12 days and separated on 20.12.2020 and since then they have no marital relation. The learned Judge has also rightly considered the observations made by the Hon’ble Apex Court in case of Amit Kumar v. Suman Beniwal (supra) by observing that the said judgment is not helpful to the Petitioners as the Hon’ble Apex Court has exercised its power under Article 142 of Constitution of India and wiaved of statutory period of six months under Section 13(B)(2) of the Hindu Marriage Act and the leanred Principal Judge, Family Court Ahmedabad has no power to exercise such power under Article 142 of Constitution of India."
In view of the above, the Court was in complete agreement with the findings recorded by the learned Principal Judge, Family Court.
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