Sau. Sonali W/O Manishkumar ... vs Nil
2007 Latest Caselaw 808 Bom

JUDGMENT

A.B. Chaudhari, J.

Page 1699

1. Rule. This petition is taken up for final disposal as per the request made by the counsel for the petitioners.

2. By the present petition, order dated 25.6.2007 in Hindu Marriage Petition No. F-87/2007 below Ex.7 passed by Family Court No. 2, Nagpur, is impugned.

3. Facts:

Petitioners No. 1 and 2 were married on 31.5.2001. The marriage between them broke down irretrievably and since January 2006 they are living separately. All efforts for reconciliation have failed. Both the petitioners have filed a petition for divorce by mutual consent under Section 13B of Hindu Marriage Act, 1955 before the Family Court at Nagpur, on 3.5.2007. On certain consent terms, after filing of the petition, the Conciliator, Page 1700 Family Court, Nagpur, interviewed both the petitioners in the conciliation proceedings, but to no use. The Conciliator, therefore, submitted failure report to the Judge, Family Court No. 2, Nagpur. Thereafter the Family Court posted the proceedings on a date beyond six months, i.e. on 12.11.2007. The petitioners being young by age and having bright prospects of being re-married, filed an application Ex.7 on affidavit sworn by both the petitioners with a prayer to waive the statutory period of six months prescribed under Section 13B(2) of the Hindu Marriage Act and for passing the decree by mutual consent. The learned Family Court rejected the said application.

4. Arguments:

Mr. Kasat, learned Counsel for the petitioners, contended that at the earlier point of time in the conciliation proceedings also, all the efforts made for reconciliation have failed. The learned Counsel then submitted that the apprehensions expressed by the Family Court are not based on any interaction by the Family Court with the purpose or any material from any source whatsoever. As regards maintenance, he submits that the wife is well educated and is well supported by her father and near relatives and both the petitioners are looking for remarriage in near future. The parties being well-off and are interested in getting remarried, mere denial of maintenance by wife does not ipso facto give rise to any suspicion in the mind of the Court. The provision regarding statutory period of six months can be waived and in support of the same the counsel placed reliance on Delhi High Court decision in the case of Ms. Anita Sharma & anr. v.Nil respondent reported in AIR 2005 Delhi 365. Finally, he prayed for allowing the writ petition.

5. Consideration:

On 16.7.2007 when the petition came up before this Court, since the parties to the writ petition were not present, I made an order asking them to remain present on 27.7.2007 in Chamber at 2-15 p.m. along with necessary documents. Accordingly on 27.7.2007 petitioners No. 1 and 2 and their respective fathers were present along with their counsel Mr.J.B. Kasat. I had asked them the questions in relation to the apprehensions expressed by the Family Court that the consent of the wife could have been influenced by coercion or undue influence, that the wife has no independent source of income and still she denied any maintenance from the petitioner No. 2husband. The result of the interview is that I did not find any of the apprehensions expressed by the Family Court existing.

6. Considering the above factual position and the submissions made by the learned Counsel for the petitioners, I find in the instant case, as rightly observed by Andhra Pradesh High Court in the case of K. Omprakash v. K. Nalini , that the broken iron can be joined together but not broken hearts. In the present case, it is seen that the marriage took place on 31.5.2001 and both the husband and wife are living separately since about 11/2 years. In Pooja Gupta v. Nil reported Page 1701 in 2005(1) DMC 571, following relevant considerations were set out for granting exemption from passage of one year before filing a petition for divorce by mutual consent. True it is that the above guidelines were laid down in the context of provisions of Section 13B(1), but there is no reason why these guidelines should not apply equally to a situation where a waiver of period of six months stipulated by Section 13B(2) is sought by both the spouses. The view taken by Delhi High Court and some of the guidelines, as aforesaid, deserves to be followed. As earlier stated, I did not find any apprehension expressed by the Family Court existing nor did I find that there was any hasty decision on the part of the husband and wife. The age of wife is about 29 years while that of the husband is 33 years and I think that the decision taken by them is a matured and well considered one and not arrived at any in external influence. It is note worthy that the marriage had taken place on 31.5.2001 and a period of six years has already passed. They are living separately since January 2006 and I think that the said period is sufficient to allow the parties to think and rethink.

7. For all the reasons therefore the writ petition is allowed. The impugned order at Ex.7 passed by the Family Court No. 2 is quashed and set aside. In view of the exceptional hardships experienced by the parties, i.e. petitioners No. 1 and 2, the claim for exemption for waiving the period of six months for divorce by mutual consent is allowed and the marriage solemnized between Sonali w/o Manikshkumar Chandak and Manishkumar s/o Jugalkishor Chandak on 31.5.2001 is dissolved by a decree under Section 13B(2) of the Hindu Marriage Act, 1955 with effect from 03.08.2007. Rule made absolute in terms of prayer Clause A, B & C. Decree be drawn up accordingly. No order as to costs.