Calcutta High Court (Appellete Side)
Pranabesh Kundu vs Priya Sarkar on 13 October, 2023
13.10.2023
Amalranjan
C.O. No. 3294 of 2023
Pranabesh Kundu
Vs.
Priya Sarkar
Mr. Partha Pratim Roy
Mr. Sarbananda Sanyal
...for the petitioner
Mr. Roy, learned advocate appearing for the
petitioner submits that in spite of the fact that it
has now been judicially settled that the statutory
waiting period under Section 28 of the Special
Marriage Act can be waived but the learned Trial
Judge is refusing to accept such an application.
On a query of the Court Mr. Roy submits
that though the petitioner attempted to file a
petition which has been annexed at page 30 of
the revisional application, but the learned
District Judge at Barasat is not accepting the
said application.
In support of the contention that the
statutory waiting period can be waived, Mr. Roy,
relies upon a decision of the Hon'ble Supreme
Court reported in (2017) 8 SCC 746 (Amardeep
Singh Vs. Harveen Kaur) wherein the Hon'ble
Supreme Court in paragraph 19 of the said
judgment has held as follows:
"19. Applying the above to the present
situation, we are of 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."
In view of the aforesaid well settled
proposition of law, a party cannot be prevented
from filing an application for waiver of the
statutory waiting period.
The parties are at liberty to file a petition for
waiving the statutory period under Section 28 of
the Special Marriage Act within a period of two
weeks after the reopening of the court after Puja
Vacation. If such application is filed the learned
Additional District Judge, Fast Tract 2nd Court at
Barasat is requested to take up the application,
if any, filed pursuant to the liberty granted by
this court for hearing and decide the same in the
light of the decision in Amardeep Singh (supra)
as expeditiously as possible but preferably
within a period of 4 weeks from the date of filing
of such application.
The petitioner shall be obliged to forward a
copy of this application along with a copy of the
order passed by this court upon the opposite
parties by registered post/speed post with
Acknowledgement Due or by hand.
With the above observation the C.O. 3294 of
2023 is disposed of.
Urgent certified photo copy of this order, if
applied for, be given to learned advocates for the
parties upon compliance of all requisite
formalities.
( Hiranmay Bhattacharyya, J. )
