Chattisgarh High Court
Smt. Vijaya Kurrey vs Vinod Kurrey on 1 April, 2022
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FA(MAT) No. 74 of 2021
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 74 of 2021
• Smt. Vijaya Kurrey W/o Shri Vinod Kurrey Aged About 28 Years D/o Shri
H.L. Ratre, Working As Divisional Forest Officer, Raigarh, District
Raigarh(C.G.), Permanent R/o D-66, Guru Ghasidasa Colony, New
Rajendra Nagar, Raipur, Tahsil And District- Raipur (C.G.)
---- Petitioner
Versus
• Vinod Kurrey S/o Shri N. D. Kurrey Aged About 32 Years R/o Near Sanivani
Care Hospital, Dawda Colony, Raipur, Tahsil And District Raipur (C.G.)
---- Respondent
FA(MAT) No. 73 of 2021
• Smt. Vijaya Kurrey W/o Shri Vinod Kurrey Aged About 28 Years D/o Shri H.
L. Ratre, Working As Divisional Forest Officer, Raigarh, District- Raigarh
(C.G.), Permanent R/o D-66, Guru Ghasidasa Colony, New Rajendra Nagar,
Raipur, Tahsil And District- Raipur (C.G.)
---- Petitioner
Versus
• Vinod Kurrey S/o Shri N.D. Kurrey Aged About 32 Years R/o Near Sanjivani
Care Hospital, Dawda Colony, Raipur, Tahsil And District- Raipur (C.G.)
---- Respondent
For Appellant : Shri V.R. Tiwari, Senior Advocate
with Shri Ashish Gupta and Shri Atul
Kesharwani, Advocate
For Respondent : Shri Rituraj Burman, Advocate
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
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FA(MAT) No. 74 of 2021
Per Goutam Bhaduri, J.
01/04/20 22
Heard.
1. Since the common facts and grounds are involved in both the appeals
they are being considered and decided by this common order.
2. The facts of the case in nutshell is that marriage of the appellant and
respondent was solemnized on 26.12.2012. Thereafter, the marriage
could not go along and with passage of time petition was filed by the
husband namely Vinod Kurrey for restitution of conjugal rights
whereas the wife filed the petition for divorce. The learned Family
Court heard both the cases together and application filed by the wife
for divorce was dismissed and application filed by the husband for
restitution of conjugal rights was allowed. Aggrieved by the impugned
order two separate appeals were filed by wife Smt. Vijaya Kurrey
before this Court. Thereafter, when the cases came up for hearing
before this Court on 29.03.2022, the parties were present in person
before this Court and they were directed to go before the mediator to
reconcile or for separation. The mediation report has been received
and subsequently application under Section 13-B of the Hindu
Marriage Act, 1955 for dissolution of marriage by mutual consent has
also been filed.
3. Perusal of the application under Section 13-B of the Hindu Marriage Act,
1955 for dissolution of marriage by mutual consent purports that they
FA(MAT) No. 74 of 2021
both have decided to part their ways as much as they cannot live
together. During the hearing, both the parties are present in person
before this Court and they submit that they are residing separately
from 29.08.2015. Further perusal of application under Section 13-B of
Hindu Marriage Act purports that an amount of Rs. 20,00,000/- for one
time settlement by two separate cheques bearing No. 546372 and
546373 of Rs. 10,00.000/- each of State Bank of India, Telibandha
branch is settled to be given to the respondent. It is further submitted
that they have decided to dissolve the marriage in as much as there is
no chance of any reconciliation for different reasons.
4. The application under section 13-B of the Hindu Marriage Act contains
the signature of both the parties and also the counsel. The application
for mutual divorce though was filed on 30.03.2022, but it is admitted
position that both the parties are living separately from 29.08.2015 i.e.
from last 7 years and different proceedings were also pending. It is
further prayed for waiver of cooling-off period of six months under
Section 13-B of the Hindu Marriage Act, as much as considerable time
has passed till date till their separation.
5. In this context, the text of section 13-B of the Hindu Marriage Act would
be relevant here and quoted below:-
"13-B. Divorce by mutual consent.-- (1)Subject to
the provisions of this Act a petition for dissolution of
marriage by a decree of divorce may be presented to
the district court by both the parties to a marriage
together, whether such marriage was solemnised
FA(MAT) No. 74 of 2021
before or after the commencement of the Marriage
Laws (Amendment) Act, 1976, on the ground that
they have been living separately for a period of one
year or more, that they have not been able to live
together and that they have mutually agreed that the
marriage should be dissolved.
(2) On the motion of both the parties made not earlier
than six months after the date of the presentation of
the petition referred to in sub-section(1) and not later
than eighteen months after the said date, if the period
is not withdrawn in the meantime,the Court shall, on
being satisfied, after hearing the parties and after
making such inquiry as it thinks fit,that a marriage has
been solemnised and that the averments in the
petition are true, pass a decree of divorce declaring
the marriage to be dissolved with effect from the date
of the decree."
6. The Supreme Court in a case law reported in (2017) 7 SCC page 746
- Amardeep Singh Vs. Harveen Kaur has held that in the year
1976, the concept of divorce by mutual consent was introduced and
however, section 13-B(2)contains a bar to divorce being granted
before six months of time elapsing after filing of the divorce petition by
mutual consent. The said period was laid down to enable the parties
to have a rethink so that the court grant divorce by mutual consent
only if there is no chance for reconciliation. The Supreme Court has
further laid down the following principles at para 19 :
"19.Applying the above to the present situation, we
are of the view that where the court dealing with a
FA(MAT) No. 74 of 2021
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 3CPC/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."
7. Applying the aforesaid dictum in the present case, since the parties are
residing separately from last seven years i.e. from 2015 and the record
of the Court below also shows that there is no chance of
reconciliation, therefore, by way of settlement an amount of Rs.
20,00,000/- is paid by two separate cheques to the respondent before
FA(MAT) No. 74 of 2021
this Court. The said condition of the application, therefore, fortified with
the intent of the parties that they cannot go along together in their
marital journey. Consequently, we deem it proper that since the parties
are residing separately from last seven years and mutual divorce
application has been filed before this Court by both the parties
expressing their views of mutual divorce, we deem it proper to waive
off colling-off period of 6 months and allow the application under
Section 13-B of the Hindu Marriage Act for mutual divorce. Accordingly,
it is ordered that the marriage between the parties dated 26.12.2012
be dissolved by decree of divorce by mutual consent.
8. A decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Sanjay S. Agrawal )
Judge Judge
Jyoti
