Bombay High Court
Neelasha Prashant More Alias ... vs Prashant Vinayak More on 6 October, 2023
Bench: Amit Borkar
2023:BHC-AS:29372-DB
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Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12084 OF 2023
Neelasha Prashant More Alias Kshama
Sitaram Mhatre ... Petitioner
V/s.
Prashant Vinayak More ... Respondent
Ms. Mehak Bookwala i/b Mr. Suraj Kaushik for the
Petitioner.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 6, 2023
P.C.:
1. The petitioner is challenging order passed by Family Court
referring parties to a Conciliator. According to the petitioner,
marriage is irretrievably broken. There are no chances of
conciliation. The parties have signed the consent terms for divorce
and, therefore, no purpose would be served by referring the parties
to the conciliation or mediation. According to the petitioner,
therefore, without completion of mandatory period, the petitioner
is entitled to decree of divorce.
2. The Apex Court in the case of Amardeep Singh v.
Harveen Kaur, reported in (2017) 8 SCC 746 in paragraph
No.19 and 20, held as under:
"19. Applying the above to the present situation, we are of
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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."
3. The said judgment is thereafter followed by the Apex Court
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in the case of Amit Kumar Vs. Suman Beniwal reported in
2021 SCC OnLine SC 1270 in paragraph No.22, the Apex Court
has held as under:
"22. The Family Court, as well as the High Court, have
misconstrued the judgment of this Court in Amardeep Singh
v. Harveen Kaur (supra) and proceeded on the basis that this
Court has held that the conditions specified in paragraph 19
of the said judgment, quoted hereinabove, are mandatory
and that the statutory waiting period of six months until
Section 13B(2) can only be waived if all the aforesaid
conditions are fulfilled, including, in particular, the condition
of separation of at least one and half year before making the
motion for decree of divorce."
4. Considering the ratios laid down by the Apex Court, it is
clear that unless conditions in paragraph No.19, are fulfilled. The
Court has no power to waive the period of six months.
5. Once the conditions in paragraph No.19, are fulfilled, it will
be open for the Family Court to pass order in accordance with law
in terms of paragraph No.22, in the case of Amit Kumar (supra).
6. The writ petition stands disposed of with above clarification.
(AMIT BORKAR, J.)
