Chattisgarh High Court
Jailal Nishad vs Smt. Soniya Nishad on 19 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 90 of 2022
• Jailal Nishad S/o Late Ishwar Nishad Aged About 32 Years R/o
Village - Ambagarh Chowki, Ward No. - 10, P.S. And Tahsil -
Ambagarh Chowki, District : Rajnandgaon, Chhattisgarh
---- Appellant
Versus
• Smt. Soniya Nishad W/o Jailal Nishad Aged About 26 Years R/o Care
Of Mother Smt. Ratna Bai Nishad, Village - Tekuwa, Post Office P.S. -
Somni, District : Rajnandgaon, Chhattisgarh
---- Respondent
For Appellant : Shri Shobhit Koshta, Advocate
For Respondent : Shri Vaibhav Dhar Diwan, Advocate
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Radhakishan Agrawal
Order On Board
Per Goutam Bhaduri, J.
19/10/2022
1. Heard.
2. The instant appeal is against the judgment and decree dated
30.03.2022 passed by the Judge, Family Court, Rajnandgaon, district
Rajnandgaon in Civil suit No. 7A/2019 whereby the application preferred by
the husband for dissolution of marriage by decree of divorce was dismissed.
3. The marriage between the parties took place on 12.05.2016,
thereafter they could not go long so as to continue with the marital
relationship and eventually an application for divorce was filed by the
husband which was dismissed.
4. The appeal having been filed before this court, the parties were sent
for mediation. It has been submitted before this court that during mediation
both the parties have agreed to part their ways and accordingly have filed
application under Section 13 (b) of the Hindu Marriage Act for decree of
divorce along with the application to waive the cooling-off period of six
months.
5. Both the appellant/husband and respondent/wife who are present in
person before this Court have agreed that they have mutually decided to
part their ways as they are living separately since 18.07.2016. It has been
further submitted by the parties that as agreed during the mediation, amount
of Rs. 10,000/- and items received during the marriage has also been
handed over to the wife by the husband. The wife stated that she has
received the amount of Rs. 10,000/- and the items. It has been further stated
that amount of Rs. 2,00,000/- has been agreed during the divorce and draft
is also kept which would be paid as per settlement. The amount of Rs.
2,00,000/- by way of draft bearing No. 484688 dated 13.10.2022 is being
handed over to the wife. It has been stated that in connection with Crime
Number 23/2018 wherein the husband sustained conviction under Section
509 (B) IPC and Section 67 (A) of the Information Technology Act is pending
before the learned Sessions Court, Rajnandgaon and it has been agreed
between the parties that an application under Section 320 Cr.P.C would be
filed to compound the case.
6. We have perused the application under Section 13 (b) of the Hindu
Marriage Act and the application also for counselling of the case.
7. It is not in dispute that the parties are living separately since
18.07.2016 and both the parties unequivocally submit before the court that
the chances of reconciliation do not exist. The application under Section
13(b) of the Hindu Marriage Act has been filed before this Court on
12.10.2022 along with the application to waive the cooling-off period of six
months which is supported by an affidavit. 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 solemnized 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
solemnized 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 divorce."
8. 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 to the divorce petition 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 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."
9. Applying the aforesaid principle to the above case, the parties have
stated that after the marriage took place they could not go along with each
other and eventually have parted their ways and are residing separately and
during mediation the parties have mutually agreed to dissolve their marriage
by a decree of divorce and part of settlement has already been complied
with as before this Court an amount of Rs. 2,00,000/- by way of draft is
given and wife further admits to have received Rs. 10,000/- and items which
were given during marriage. As a natural consequence it would show that
the parties have acted upon their agreement to dissolve the marriage and
have come to a firm opinion and arrived to a settlement that they cannot stay
together and want divorce. Having stated so it further fortifies the intention of
the parties to get separated and the waiting period would only prolong their
agony.
10. Under the circumstances, the waiver of cooling of the period of six
months is allowed in the backdrop of the fact that the parties are residing
separately for quite long and since both the parties have consented for
mutual divorce, the application under Section 13(b) of the Hindu Marriage
Act 1955 is allowed in the terms of settlement. Accordingly it is ordered that
the marriage in between the parties solemnized on 12.05.2016 shall stand
dissolved by decree of divorce henceforth. The terms of settlement arrived
at during the mediation would be the part of the decree so as to enable the
parties to comply the terms of compromise as mentioned at para 3 of the
settlement with regard to closure of criminal proceedings.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
suguna
