Rikpal Singh Khanuja vs Smt. Paramjit Kaur
2022 Latest Caselaw 4698 Chatt

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                                                                                                     NAFR
               HIGH COURT OF CHHATTISGARH, BILASPUR
                              FAM No. 106 of 2018
      • Rikpal Singh Khanuja S/o Keshar Singh, Aged About 42 Years, R/o Main
        Road Kawardha District Kabirdham, Chhattisgarh, District : Kawardha
        (Kabirdham), Chhattisgarh                              --- Appellant.

                                                Versus

      • Smt. Paramjit Kaur W/o Rikpal Singh Khanuja, Aged About 37 Years, R/o
        Main Road Kawardha, District Kabirdham, Chhattisgarh, District :
        Kawardha (Kabirdham), Chhattisgarh                   --- Respondent.

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For Appellant :- Mr. Anumeh Shrivastava, Adv.

For Respondent :- Mr. Anshul Tiwari, Adv. on behalf of Mr. Manoj Paranjpe, Adv.

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Hon'ble Shri Justice Goutam Bhaduri & Hon'ble Shri Justice Deepak Kumar Tiwari

Order on Board by Justice Goutam Bhaduri J.

25.07.2022

1. The instant appeal has been filed by the appellant/husband against the

judgment and decree dated 24.03.2018 passed in Civil Case No.11A/2017

passed by learned Judge, Family Court, District Kabirdham wherein after

adjudication, the application filed by the appellant/husband seeking grant of

divorce was dismissed.

2. Earlier when the matter came up for hearing before this Court on

19.07.2022, it was submitted by the parties that they are living separately since

last 3 years and cannot live together. All the efforts for mutual conciliation and

settlement have failed. Today an application under Section 13 B of the Hindu

Marriage Act, 1955 and an application for waiving off the cooling period of six

months for grant of decree of mutual divorce have been filed by the respondent/

wife. Both husband and wife are present in person before this Court. They have

been identified by their counsel and copy their Adhar Cards have also placed on

record. They would submit that the mutual decree of divorce may be granted to

them and the period of six months may be waived off in the backdrop of the fact

that they are living separately since last 3 years. When the Court asks the

respondent/wife in respect of the permanent alimony, the respondent/wife who is

present in person before this Court along with her mother namely Mrs.

Charanjeet Kaur Arora and brother namely Mr. Suminder Dal Singh Arora,

submits that she do not want alimony or any maintenance and only wants a

decree of divorce. The respondent/wife also submits that she cannot live along

with the appellant.

3. As regards the mutual divorce and waiving of cooling off period, the

Supreme Court in the case of Amardeep Singh Vs. Harveen Kaur reported in

(2017) 8 SCC 746 has observed in paras 15, 16, 17 & 19 as under:-

"15. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

16. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(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 grants divorce by mutual consent only if there is no chance for reconciliation.

17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to

prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

18. *** *** ***

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 13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(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."

4. Applying the aforesaid principles to the facts of the present case, it would

suggest that the parties are living separately since last 3 years and the

application for mutual decree of divorce has been filed by them. On earlier

occasion, all the efforts of conciliation has failed. The application for mutual

divorce has been filed along with the application for waiving off the cooling

period of six months and the parties, who are present in person repeatedly in

unequivocal terms, submit that they cannot live together. Therefore, by all

necessary implications it goes to show that even after rethinking, the parties

have come to firm opinion and arrived at a settlement that they cannot stay

together and want a divorce. Having stated so it further fortifies the intention to

get separated and the waiting period will only prolong their agony.

5. Under these circumstances, the application under Section 13 B of the

Hindu Marriage Act is allowed. The marriage between the parties solemnized on

09.01.2010 is dissolved by a decree of divorce. It is further made clear that since

the wife has stated that she does not want any alimony, we are not deliberating

upon the said fact at this moment.

6. Accordingly, the marriage having been dissolved, this appeal is disposed

of.

                Sd/-                                          Sd/-

        (Goutam Bhaduri)                           (Deepak Kumar Tiwari)
             Judge                                        Judge

Ajay