Bombay High Court
Tejas Dilip Barmecha And Anr vs The State Of Maharashtra Through Chief ... on 9 August, 2024
2024:BHC-AS:33384
1-WP-6612-2024.docx
rrpillai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6612 OF 2024
1. Tejas Dilip Barmecha
Age : 27 years, Occ : Job
R/a. Grand by Society A, 4/901
Shewalwadi, Manjari
Hadpsar, Pune, Maharashtra-410 028
2. Sakshi Subhash Gatagat
Age : 26 years, Occ : Job
R/a Room No. 3, Yogeshwar Society
Wadgaon, Pune-411 014 ..... Petitioners
Vs.
The State of Maharashtra
(Through Chief Government Pleader
High Court A. S. Bombay) ..... Respondent
Mr. Mateen Shaikh a/w. Mr. Suresh Jadhav, Ms.Manisha Khawade and
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI Ms. Muskan Shaikh.
PILLAI Date:
2024.08.21
10:21:54
+0530
Mr. Aloka A. Nadkarni, Respondent for the State.
1/10
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CORAM : GAURI GODSE, J.
DATE : 9th AUGUST 2024
ORAL JUDGMENT:
1. Heard. Rule. Rule made returnable forthwith. By consent of the
parties, taken up for final disposal.
2. This petition takes exception to the order passed by the Family
Court, Pune, on 23rd April 2024, rejecting the petitioners' application
for waiver of the cooling off period provided under section 13-B of the
Hindu Marriage Act, 1955 ('the said Act'). The petitioners got married
on 26th November 2022 as per Hindu rituals in Pune. It is the
petitioners' case that there were differences between them within a few
days of their marriage. Hence, they started residing separately since
21st February 2023.
3. Learned counsel for the petitioners submitted that though their
well-wishers, friends and family members made reconciliation
attempts, they failed, and ultimately, they decided to seek a divorce by
mutual consent. Hence, petitioners filed a petition for dissolution of
their marriage by mutual consent in the Family Court at Pune. Since
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the parties had already been residing separately since 21 st February
2023, they also filed an application for waiver of the six months period
and requested for a decree for the dissolution of their marriage. The
Family Court rejected the said application on 23 rd April 2024. Hence,
this petition.
4. Learned counsel for the petitioners submitted that in spite of
making attempts, parties were unable to reconcile their differences, so
they decided to apply for dissolution of their marriage. He further
submitted that it was impossible for the parties to reside together.
Hence, they applied for a waiver of the statutory period. He further
submitted that the learned Judge of the Family Court rejected the
application on the ground that there is no separation of the parties for
the period of eighteen months on the date of filing the petition.
5. Learned counsel for the petitioner submitted that the learned
Judge of the Family Court referred to the decision of the Apex Court in
the case of Amardeep Singh Vs Harveen Kaur 1; however, failed to
properly appreciate the legal principles laid down by the Apex Court.
1 (2017) 8 Supreme Court Cases 746
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6. Learned counsel for the petitioners submitted that on the date of
filing the petition for divorce, the petitioners were already residing
separately for more than a year. He submitted that since there was no
possibility of any reconciliation, the petitioners applied for a waiver of
the cooling off period of six months. Learned counsel thus submitted
that the learned Judge of the Family Court ought to have correctly
appreciated the legal principles settled by the Hon'ble Supreme Court
in the decision of Amardeep Singh, and allowed the application for
waiver of the waiting period of six months. He submits that there is no
possibility of any reconciliation; hence, the application for waiver be
allowed, and the parties be granted an order of dissolution of their
marriage.
7. In view of the aforesaid, the petition was taken up for final
disposal. The learned Judge of the Family Court rejected the
application for waiver of the cooling off period of six months on the
ground that the parties have not been residing separately for 18
months on the date of filing the petition. The learned Judge ought to
have correctly applied the settled legal principles. An application for
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waiver of the cooling off period is erroneously rejected on the ground
that on the date of filing the petition, there was no separation of
eighteen months. The learned Judge ignored that the parties were
residing separately for more than one year on the date of filing the
petition and thus applied for a waiver of the six months waiting period.
8. The guiding principles in the Supreme Court's decision in the
case of Amardeep Singh need to be correctly understood and applied
to achieve the object of the provision of Section 13-B of the said Act.
The Hon'ble Supreme Court has observed that the object of the
waiting period was to provide a safeguard against a hurried decision, if
there was otherwise a possibility of reconciliation. By relying upon the
legal principles settled in the decision of the Hon'ble Supreme Court,
this Court, in a recent decision in the case of Sneha Akshay Garg and
Another Vs Nil 2 held as under:
"8. The guiding principles in the Supreme Court's decision
in the case of Amardeep Singh need to be correctly
understood and applied to achieve the object of the
provision of Section 13-B of the said Act. The Hon'ble
Supreme Court has observed that the object of the
2 2024 SCC Online Bom 2513
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waiting period was to provide a safeguard against a
hurried decision, if there was otherwise a possibility of
reconciliation. Thus, the waiting period is a precautionary
provision to avoid any injustice to any party and rule out
the possibility of reconciliation. Thus, the purpose of the
waiting period needs to be correctly understood while
deciding the application for a waiver. Seeing the rapid
changes in an evolving society, the judiciary would play a
vital role in assisting the parties seeking the dissolution of
their marriage by mutual consent. Thus, keeping in mind
the changing social conditions, a realistic approach needs
to be adopted.
9. Normally, we come across cases where parties
continue to fight, though there is no possibility of
reconciliation. In such cases, the parties are encouraged
to explore the possibility of an amicable settlement and
are even referred for mediation so that they can put an
end to the litigation. However, when the parties apply for
divorce by mutual consent, they have taken a conscious
decision to separate and thus have shown a reasonable
approach. Such a decision shows that they have decided
to move ahead, and thus, there is every chance of
rehabilitation. The newly married couple not being able to
reside together, or a couple married for quite some time
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is unable to continue to stay together for various reasons,
itself would be a mental agony. Thus, once the Court is
satisfied that the parties have taken a conscious decision
to separate and move ahead and that there is no
possibility of reconciliation, the Court should adopt a
realistic approach and exercise the discretion to waive
the waiting period. Hence, it is the duty of the Court to
assist the parties by exercising the discretion to waive the
cooling off period and free them from the stress of their
application for divorce remaining pending."
9. In the present case, I have interacted with both the petitioners
who appeared before me today through video conferencing. On
making a specific query regarding the possibility of reconciliation, both
the petitioners submitted that they are unable to sort out their
differences and have made a conscious decision to separate. They
further submitted that in spite of making several efforts, they were
unable to reconcile their differences and would not be able to stay
together. The petitioners further informed that they both are well
settled in their independent professions, and the pendency of the
petition is causing mental agony. Hence, they requested that the
cooling off period be waived and an order for dissolution of their
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marriage be also passed by this Court. The petitioners submitted that
they had no claim or any grievance against each other and that the
order be passed for the dissolution of their marriage by waiving the
waiting period.
10. Petitioner no. 1 is 27 years of age, and petitioner no. 2 is 26
years of age. They started residing separately within a few days of
their marriage. There is no issue born from the wedlock. As stated by
them, both are independently well-settled in their profession. On
interacting with the petitioners and considering the reasons stated by
them in the application for waiver of the cooling off period, I am
satisfied that the parties are unable to reconcile and have, therefore,
decided to separate. Thus, I am satisfied that the pendency of the
petition would cause mental agony and that there is no point in
keeping the marriage petition pending. In view of the aforesaid, I am
also satisfied that there is no possibility of any reconciliation. Thus, to
avoid any further loss of time, I am not inclined to relegate the parties
to the Family Court for passing the order on the main application under
section 13-B(1) of the said Act. Hence, considering the facts of the
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case, I find it appropriate to take a pragmatic view and not send the
parties to the Family Court only for the purpose of passing a final
order. If only for a technical purpose, the parties are relegated to the
Family Court, the very object of making an application for dissolution of
marriage under section 13-B(1) and the application for a waiver under
section 13-B(2) would be frustrated.
11. Considering the facts of the case, the view taken by this Court in
the decision of Sneha Akshay Garg would squarely apply to the
present case. Hence, I find it fit to exercise the jurisdiction under Article
227 of the Constitution of India to correct the impugned order by
waiving the waiting period and also pass further orders for the
dissolution of the marriage.
12. For the reasons stated above, the following order is passed:
ORDER
(I) The impugned order dated 23rd April 2024 below
Exhibit-8 passed by the learned Judge, Family Court No.
1, Pune in Petition No. F-360/2024 is quashed and set
aside.
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(II) Application at Exhibit 8 in Petition No. F-360/2024
filed before the Family Court No. 1, Pune, for six months
waiver under section 13-B(2) of the said Act is allowed,
and the six months waiting period is waived.
(III) The application for dissolution of marriage under
Section 13-B of the said Act in Petition No. F-360/2024
filed before Family Court No. 1, Pune is allowed.
(IV) Marriage solemnized between the parties on 26 th
November 2022 is dissolved.
(V) The Family Court, Pune, shall draw a decree for
divorce in terms of the dissolution of marriage granted by
this order.
(VI) The concerned Judge of the Family Court at Pune
shall issue necessary directions for drawing up the
decree in terms of this order upon the production of a
certified copy of this order without insisting on the
parties' presence.
(VII) The writ petition is allowed in the aforesaid terms.
13. Rule made absolute in the above terms.
[GAURI GODSE, J.]
