Nitin S/O Sudhakar Zaparde And ... vs Nill
2017 Latest Caselaw 1519 Bom

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                                                         wp1930.17.odt

   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR

                   Writ Petition No.1930 of 2017


  1. Nitin s/o Sudhakar Zaparde,
     Aged about 31 years,
     Occupation - Agriculturist,
     R/o Shivaji Nagar, 
     Old City, Akola,
     Tq. & Dist. Akola.

  2. Sau. Priya w/o Nitin Zaparde
     (Maiden name - Priya d/o Manohar Mehesare),
     Aged about 27 years,
     Occupation - Nil,
     R/o C/o Dhananjay D. Mehesare,
     A-7, Sai Apartments,
     Jatharpeth, Prasad Colony,
     Akola.                              ... Petitioners

        Versus

  Nil.                                             ... Respondent


  Shri H.R. Gadhia, Advocate for Petitioners.


                Coram : R.K. Deshpande, J.

th Dated : 7 April, 2017

Oral Judgment :

1. Rule. Heard finally by consent of the learned counsel

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appearing for the petitioners.

2. This petition challenges the order dated 1-3-2017 passed

by the Family Court, Akola, below Exhibit 9 in Family Petition

No.77 of 2016, rejecting the application for waiver of six months'

period for passing a decree of divorce on the ground of mutual

consent under Section 13-B of the Hindu Marriage Act, 1955.

The reasons recorded are - (i) that the law does not provide for

waiver of statutory period of six months stipulated under

Section 17-B of the said Act, (ii) that there is nothing on record

to show that the parties to the proceedings had contested any

other litigation prior to the present petition for divorce by mutual

consent so as to avail the benefit of pendency of the proceedings

to seek waiver, and (iii) that the real reason for filing the

application is the desire of the petitioner No.1/husband to

re-marry and nothing more, which reason has also been stated in

the application under consideration.

3. This petition is filed jointly by both the husband and the

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wife. The marriage between them was solemnized on 30-4-2012,

and both of them are residing separately from 2-5-2014. Both

were blessed with two daughters, who are minors. The petition

for divorce by mutual consent was filed on 29-11-2016. Both the

daughters are residing with the petitioner No.1/husband from

13-10-2015. The terms and conditions are agreed between the

parties, which are stated in the petition in question.

4. The Division Bench of this Court has taken a view in

paras 10 and 11 of the decision in the case of Mittal Remesh

Panchal and another v. Nil, reported in 2014(3) Mh.L.J. 755, as

under :

"10. The statutory period of six months provided under section 13-B(2) has been provided with a specific intent that the possibility of last minute reconciliation can be worked out in such matters. In dispensation of justice, the Courts are expected to do the justice between the parties by overcoming the technical difficulties, coming in the way of imparting justice. The waiver of statutory period of six months though not specifically provided but same can be

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read in provisions as the main object of provision is to libralize divorce. The provision cannot be read in rigidity so as to make the provision ineffective and meaningless. The period of six months is nothing but period provided with a view to enable parties to reconsider their decision and instead of dissolving their marriage resolve their differences. It was never the intention of the legislature that such period is to be observed irrespective of the facts of the case wherein the marriage has been irretrievably broken and there are no chances of reconciliation between the parties or it would be futile exercise to wait for six months."

"11. While legislating the law, it is not possible for legislature to foresee all possible circumstances, which may arise in future. In order to overcome such situation in Code of Criminal Procedure as well as Code of Civil Procedure, the inherent powers have been conferred upon the Court of law by making specific provision to that effect in both the enactments. Section 151 of Civil Procedure Code provides inherent powers in Court to overcome the situation which was not visualized by the legislature. Section 151 provides inherent powers in Courts to make such orders as may be necessary to meet the ends of justice or to prevent abuse of process of law. Thus in any peculiar

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or extraordinary situation where the procedural law are inadequate to address such problem, the recourse of inherent powers under section 151 of the Civil Procedure Code can always be resorted by Courts of law."

5. It is not the case where the parties have filed a petition

for divorce by mutual consent within a period of six months from

the date of solemnization of marriage. Almost four years have

lapsed from the date of marriage and two years have lapsed from

their separation. The parties have agreed that both the

daughters of the petitioners shall remain with the petitioner

No.1/husband. The Family Court appears to have ignored the

law laid down by this Court in the case of Mittal Remesh Panchal,

cited supra. The period of six months could have been waived in

the facts and circumstances of this case, although there was no

previous litigation between the parties. The reason that the

petitioner No.1/husband desires to re-marry is not germane to

the issue of waiver to operate for refusal to grant such waiver.

The order impugned cannot, therefore, be sustained and the

same will have to be quashed and set aside.

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6. In the result, the petition is allowed. The order

dated 1-3-2017 passed by the Family Court, Akola, below

Exhibit 9 in Family Petition No.77 of 2016, is hereby quashed

and set aside. The application for waiver of period of six months

is allowed. The Family Court to take into consideration all other

relevant factors for passing a decree by mutual consent.

7. Rule is made absolute in above terms. No order as to

costs.

JUDGE.

Lanjewar.