Bombay High Court
Mrs. Pooja Bharat Chandak, ... vs Nil on 20 December, 2022
Bench: V. G. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7468/2022
1. Mrs. Pooja Bharat Chandak,
(Maiden Name: Ku. Pooja Balkishan
Rathi), aged about 27 years, Occu: Nil,
R/o Flat No. C-2, 2nd Floor, Achraj
Tower-1, Chaoni, Sadar,
Nagpur-440013, Mob. No. 8552066664.
2. Shri Bharat Mahesh Chandak,
Aged about 27 Years, Occu: Business,
R/o Flat No. 209, Subhavastu Residency
Narsingpur Road, Chhindwada,
Madhya Pradesh. Mob. 9479488519,
7999070548.
... PETITIONERS/
ORIGINAL APPLICANT.
VERSUS
NIL
... RESPONDENT
______________________________________________________________
Mr. S.M. Bhangde, Counsel for Petitioners.
Mr . K.L. Dharmadhikari, amicus curia.
______________________________________________________________
CORAM : VINAY JOSHI, J.
DATE OF JUDGMENT : 20.12.2022.
ORAL JUDGMENT :
1. Heard.
2. Rule. Rule is made returnable forthwith. Heard finally by
consent of the learned counsel appearing for the parties.
3. The challenge in this writ petition is to the order dated
08/09/2022 passed by the learned Family Court No. 2, Nagpur
declining to waive the statutory period of six months, as contemplated
under Section 13B (2) of the Hindu Marriage Act, 1955 (for short 'the
Act of 1955').
4. The facts of the case can be stated briefly that both
petitioners got married on 20/06/2021, as per Hindu Customary
Rights, and later on, marriage was registered. Since inception, the
couple was unable to match with each other. They realized that their
liking, thinking, and temperament are diametrically opposite and thus,
it is difficult for them to live together. In order to have dignified
parting, they decided to separate, and accordingly, started to live
separately from 18/07/2021. Though they stayed separately for the
period of one year, despite efforts of settlement through the mediation
of parents and relatives, it has not yielded.
5. Therefore, the petitioners have applied to the Family Court
for divorce in terms of Section 13B of the Act of 1955. They preferred
an application (Exhibit-6) seeking waiver of the statutory period in
terms of Section 13B(2) of the Act of 1955. However, the Family Court
declined to exercise its discretion.
6. Both the petitioners are personally present before the
Court. It was informed that petitioner No.1-Wife is Architect whilest
petitioner No.2-Husband is holding Bachelor's Degree in Engineering.
Both are educated and well matured. On inquiring, the cause of
separation they have stated that they want to move on further in life by
choosing partners of their choice.
7. It reveals that, within one month of the marriage, they
separated and virtually the marriage was short lived. The parties have
lived apart for the period of more than one year, proceeding to the
filing of the application for divorce by mutual consent. It is informed
that, all the efforts of reconciliation have failed. Both are unwilling to
live together as Husband and Wife, due to persistent differences. Even
after, a period of more than one year of separation, the mental status
remained static.
8. The learned amicus curia Shri K. L. Dharmadhikari would
submit that the learned trial Court has rightly performed its duty, as
contemplated under Section 23(2) of the Act of 1955. It is the
submission that normally the Court shall follow the statutory mandate
unless exception has been carried out.
9. The petitioner's learned counsel relied on the decision of
the Hon'ble Supreme Court of India in Civil Appeal No. 7650 of 2021
(Amit Kumar Vs Suman Beniwal) dated 11/12/2021 to contend that
the statutory mandate is discretionary one and the Court has to
exercise its discretion based on individual facts and circumstances of
the case. The mutual proceeding was filed on 22/08/2022, as well as
the application for waiver was filed on the same date. Section 13B (2)
of the Act of 1955 intents of the act that six months cooling period has
to be observed for the hope of reunion and the Court shall make
endeavor to that regard.
10. It reveals that the period of more than four months has
been lapsed from taking out the application for waiver, but still the
parties are firm on their decision of separation. No useful purpose
would be served by making the parties to wait further, as they had
certain plans for their life. Both the parties are young and they had no
issues. The possibility of reconciliation is ruled out by them.
11. In view of that, I am satisfied that the case is made out for
a waiver of six months cooling period. The impugned order dated
08/09/2022 is set aside and the period of six months stipulated in
Section 13B (2) of the Act of 1955 is hereby waived.
12. The parties shall appear before the Family Court, Nagpur
on 23/12/2022, on which the Family Court shall pass appropriate
orders in accordance with law. The writ petition is disposed of in the
aforesaid terms.
(VINAY JOSHI, J.)
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