Andhra Pradesh High Court - Amravati
Viswanathapalle Tanuja Lanka ... vs Nil on 22 February, 2021
Bench: K Suresh Reddy
THE HON'BLE SRI JUSTICE K. SURESH REDDY
CIVIL REVISION PETITION No.1354 of 2020
ORDER :
This Civil Revision Petition is filed by the petitioners against
the Order, dated 16.11.2020 passed in I.A.No.304 of 2020 in
D.O.P.No.84 of 2020 on the file of the Court of Principal District
Judge, Krishna at Machilipatnam.
2. Brief facts of the case are that both the petitioners are wife
and husband and their marriage was performed on 27.5.2000. Out
of wedlock, they were blessed with two children. Both the
petitioners filed the above O.P. under Section 10-A of the Indian
Divorce Act,1869, seeking divorce by mutual consent. Along with
the said O.P. he also filed I.A.No.304 of 2020 seeking to waive off
the statutory period of six months for granting divorce by way of
mutual consent. In support of the same, learned counsel for the
petitioners relied on the Judgment of the Apex Court in Nikhil
Kumar Vs. Rupali Kumar1. The learned trial Judge after hearing
both sides, dismissed the said I.A., on 16.11.2020 holding that the
Judgment of Apex Court relates to Section 13-B of the Hindu
Marriage Act,1955 and on further ground that the Apex Court by
exercising the power under Article 142 of the Constitution of India,
passed the said order of waiving the statutory period, being the
Principal District Judge, he has no such power to waive the
statutory period of six months.
3. Aggrieved by the same, the petitioners herein filed the
present civil revision petition.
2016 (5) ALT 63 (SC)
4. Heard learned counsel for the petitioners and perused the
material on record.
5. Learned counsel for the petitioners submits the petitioners
have fulfilled all the guidelines prescribed by the Apex Court, as
such, the petitioners are entitled for waiving the statutory period of
six months. He further submitted that as per the settlement, the
husband has to pay monthly maintenance to the wife and children.
Unless, he joins in the job in United States, he may not be in a
position to pay maintenance to them. He also produced them
through Video Conferencing before this Court along with their
counsel Sri G.Nireekshna Rao, who also identified them. Both the
wife and husband have expressed their willingness to obtain
divorce and also waiving off statutory period.
6. Learned counsel for the petitioners also placed a reliance on
the Judgment of the Apex Court reported in Amardeep Singh Vs.
Harveen Kaur2. In the said Judgment, Apex Court has prescribed
certain guidelines, which are as follows :
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
13-B, it can do so after considering the following :
i) the statutory period of six months specified 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 XXXIIA Rule 3 CPC /Section 23(2) of the
Act/Section 9 of the Family Courts Act to reunite the
2017 (8) SCC 746
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.
7. Further, it is also important to note that Section 10-A of the
Indian Divorce Act,1869 and Section 13-B of the Hindu Marriage
Act,1955 are analogous with each other. There is no difference
between both the provisions. Hence, taking into consideration of
all these aspects, the finding of the learned Judge is liable to be set
aside.
8. In that view of the matter, the Civil Revision Petition is
allowed and the Order, dated 16.11.2020 passed in I.A.No.304 of
2020 in D.O.P.No.84 of 2020 on the file of the Court of Principal
District Judge, Krishna at Machilipatnam, is hereby set aside. The
learned Principal District Judge, Krishna at Machilipatnam, is
directed to proceed further in D.O.P.No.84 of 2020 and pass
appropriate orders in accordance with law, as expeditiously as
possible, preferably within a period of one (01) month from the date
of receipt of a copy of this order. It is needless to mention that both
the parties shall appear physically along with their counsel before
the court below.
No order as to costs.
As a sequel, Miscellaneous Petitions pending, if any, shall
stand closed.
_______________________
K. SURESH REDDY, J
22nd Februray,2021.
RPD.
HON'BLE SRI JUSTICE K. SURESH REDDY
CIVIL REVISION PETITION No.1354 of 2020
Dated : 22.02.2021
RPD.
