Allahabad High Court
Smt. Neelam Singh And Another vs Principal Judge Family Court on 27 January, 2021
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- MATTERS UNDER ARTICLE 227 No. - 127 of 2021
Petitioner :- Smt. Neelam Singh And Another
Respondent :- Principal Judge Family Court
Counsel for Petitioner :- Ganesh Mani
Hon'ble Prakash Padia,J.
1. Heard learned counsel for the petitioners.
2. The petitioner has filed the present petition under Article 227 of the Constitution of India for setting aide the order dated 09.12.2020 passed by the Family Judge, Kanpur Nagar.
3. Learned counsel for the petitioners submits that the petitioners filed divorce petition No.1920 of 2020 (Smt. Neelam Singh Vs. Naval Kishore Singh) under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as ?the Act, 1955?) before the Principal Judge, Family Court, Kanpur Nagar. Thereafter, both the petitioners jointly filed an application on 09.12.2020 which was numbered as Application No.7C2 for waving of the cooling period of six months as provided in Section 13B (2), which was rejected Principal Judge, Family Court, Kanpur Nagar vide its judgement and order dated 09.12.2020. It is argued that no valid reason whatsoever has been assigned. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of Amardeep Singh Vs. Harveen Kaur reported in 2017 SC 4417, wherein this Court has clearly held that the period mentioned in Section 13B(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. It is further argued that without considering the settled legal proposition of law, application filed by the petitioners has been rejected vide order dated 09.12.2020.
4. Heard learned counsel for the petitioners and perused the averments made in the writ petition as well as order dated 09.12.2020.
5. It appears from perusal of the order that the same was passed on the ground that till date no mediation/conciliation has been conducted between the parties. It is further stated in the impugned order that under what circumstances, the parties cannot wait for a period of six months. Section 13B of the Act, 1955 is reproduced below:-
"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 marriage to be dissolved with effect from the date of the decree."
6. After pronouncement of the judgement by the Supreme Court in the case of Amar Deep Singh (supra), various judgements were pronounced by the different High Courts including this Court. Insofar as the judgement delivered in the case of Amar Deep Singh (supra) is concerned, following paragraphs are relevant, they are reproduced below:-
"18. 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 13B(2), it can do so after considering the following:
i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(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 XXXIIA, Rule 3, CPC/Section 23(2) of the Act/ Section 9 of the Family Courts Act to re-unite 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.
19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.
21. Since we are of the view that the period mentioned in Section 13B(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."
7. In the facts and circumstances of the case, the order dated 09.12.2020 passed by the Principal Judge, Family Court, Kanpur Nagar is liable to be set aside and the same is hereby set aside.
8. The petitioners are directed to file a joint application before the Principal Judge, Family Court, Kanpur Nagar with the prayer to send the matter for mediation/conciliation within three weeks from today. If such an application is filed, Principle Judge, Family Court will send the matter for mediation/conciliation within two weeks thereafter. If it is found that the mediation has been failed between the parties and there is no chance of cohabitation or rehabilitation then the Principle Judge, Family Court will pass order on the application of the petitioners within one month from the date of order passed by the mediation/conciliation center in the light of Amar Deep Singh (supra) .
9. With the aforesaid observations, the petition is disposed of. No order as to costs.
Order Date :- 27.1.2021/saqlain
