Sanjeev Kumar vs Mrs. Akansha Kumar
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Allahabad High Court

Sanjeev Kumar vs Mrs. Akansha Kumar on 17 February, 2025

Author: Rohit Ranjan Agarwal

Bench: Rohit Ranjan Agarwal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:22719
 
Court No. - 9
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 619 of 2025
 
Petitioner :- Sanjeev Kumar
 
Respondent :- Mrs. Akansha Kumar
 
Counsel for Petitioner :- Syed Ali Imam
 

 
Hon'ble Rohit Ranjan Agarwal,J.
 

1. Heard learned counsel for the petitioner and Sri Satya Prakash, learned counsel for the sole respondent.

2. This writ petition has been filed assailing the order dated 3.12.2024 passed by Principal Judge, Family Court, Gautam Buddh Nagar in Matrimonial Case No.1650 of 2024 dismissing the application for waiving off cooling period under Section 13B of the Hindu Marriage Act, 1955 (hereinafter called as ?Act of 1955?).

3. The facts leading to the writ petition are that the petitioner was married to respondent according to Hindu rites and customs on 28.11.2017. A matrimonial dispute arose between the parties and they started living separately from 4.12.2017. A divorce petition was moved on 18.10.2024 under Section 13B of the Act of 1955. The application was moved on 03.12.2024 for waiving off cooling period on the ground that the divorce sought is mutual and the reasons which was associated for filing of the application for waiving off the cooling period are career progression, second marriage prospects and to avoid mental agony of prolonged litigation. Reliance has been placed upon decision rendered in Amardeep Singh vs. Harveen Kaur (2017) 8 SCC 746. The said application has been rejected by the order impugned.

4. Counsel for both the parties submit that efforts have been made between the parties for getting the matter sorted out but it had remained unsuccessful and the parties, who are well educated, have decided to separate by mutual consent and the said decree for divorce be passed under Section 13B of Act of 1955. It is further contended that cooling period may be waived off as they are quite matured and no purpose would be served in dragging the matter for long.

5. I have heard counsel for the parties and perused the material on record.

6. Before adverting to adjudicate the matter, a cursory glance of Section 13B of Act of 1955 is necessary for better appreciation of the case, which is as under :

"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 (68 of 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."

7. Section 13B was inserted by Act No.68 of 1976 w.e.f. 27.05.1976. Before insertion of Section 13B by amendment, the marriage could only be dissolved on statutory grounds. The concept of divorce by mutual consent for the first time was introduced in the year 1976. The provision provides that a petition for dissolution of marriage by a decree of divorce may be presented by both the parties to a marriage together on the ground that they have been living separately for a period of one year or more, and that they have not been able to live together and have mutually agreed that marriage should be dissolved. After the expiry of six months from the filing of petition under sub-section (1) of Section 13B, the second motion is to be presented after six month and not later than 18 months.

8. The issue of waiving off cooling period of six months and whether Section 13B(2) is to be read as mandatory or directory came for consideration before Hon'ble Apex Court in case of Amardeep Singh (supra). The Apex Court held that in determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have regard to the context, the subject-matter and the object of the provisions. The Court further held that since provisions of 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. Paragraphs 17, 18, 19 and 20 of the judgment are extracted hereasunder:

"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 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-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 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."

9. In the instant case, it is an admitted case to both the parties that after matrimonial dispute having been arisen between them, they are living separately since 04.12.2017. Petition under Section 13B(1) was moved on 18.10.2024 and the motion under sub-section (2) of Section 13B was moved on 03.12.2024. Taking into consideration the period provided for filing the petition under sub-sections (1) and (2) of Section 13B, the period prescribed therein is already over before the first motion itself was moved, then the Court below should have taken into consideration of the principles laid down by the Hon'ble Apex Court in case of Amardeep Singh (supra) and have allowed the application for waiving of cooling period.

10. Moreover, the petition moved by the parties clearly reveals that they have already agreed upon all terms related to permanent alimony, stridhan, Dowry articles and any other claims, which has facilitated their decision for divorce. It has been further submitted that their marriage has irretrievably broken down and separation was in their best interest.

11. Looking to the facts that both the parties are major and well educated and settlement have arrived at in regard to alimony, stridhan, dowry articles and other claims, lingering on the matter for grant of mutual divorce would only exacerbates emotional distress and hinders ability of the parties to move forward in their lives.

12. Considering the facts and circumstances of the case the order impugned dated 03.12.2024 is hereby set aside. The matter is remitted back to the Principal Judge, Family Court, Gautam Buddh Nagar to proceed with the application filed by the parties for waiving off cooling period in the light of the decision of Apex Court in case of Amardeep Singh (supra) within a period of one month from the date of presentation of a certified copy of this order and shall make every endeavour to decide the same on the next date fixed.

13. With the aforesaid direction, the writ petition stands partly allowed.

Order Date :- 17.2.2025

Kushal