Deepak vs Girija @ Babita
2023 Latest Caselaw 5910 MP

                                                            1
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                  BEFORE
                           HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                     &
                              HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                                                ON THE 12 th OF APRIL, 2023
                                              FIRST APPEAL No. 1907 of 2022

                          BETWEEN:-
                          DEEPAK S/O CHHOGALAL VERMA, AGED ABOUT 30
                          YEAR S, OCCUPATION: SERVICE, R/O NIHAL NAGAR,
                          DISTRICT DHAR (MADHYA PRADESH)

                                                                                        .....APPELLANT
                          (SHRI ANSHUL RAJPUROHIT, LEARNED COUNSEL FOR THE
                          APPELLANT)

                          AND
                          GIRIJA @ BABITA W/O KALUSINGH LODHA, AGED
                          ABOUT   27   YEARS, GRAM RALAMANDAL TEH.
                          SARDARPUR, DISTRICT DHAR (MADHYA PRADESH)

                                                                                      .....RESPONDENT
                          (SHRI MOHIT PANDYA, LEARNED COUNSEL FOR THE RESPONDENT.

                                This appeal coming on for admission this day, JUSTICE SUSHRUT

                          ARVIND DHARMADHIKARI passed the following:
                                                             ORDER

Both appellant and respondent are present in person before this Court. Heard on I.A. No.2231/2023, an application under Section 13(B) of the Hindu Marriage Act, 1955(for short "the Act of 1955").

The present appeal has been filed by the appellant (husband) being aggrieved by the judgement and decree dated 05.11.2022 in RCS-HM/84/2019, passed by the Principal Judge, Family Court, Dhar, District Dhar(M.P.), whereby the petition seeking divorce under Section 13(1) of the Act has been Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 4/13/2023 6:42:37 PM

rejected.

The appellant(husband) as well as respondent(wife) were present before this Court and both of them have stated that they have filed joint application seeking divorce by mutual consent and had agreed that there is no possibility of reconcilement.

The brief facts of the case are that the appellant and the respondent entered into the wedlock on 21.04.2015. They had no issues from the said wedlock. Both of them are living separately since the Year 2016 i.e. more than 7 years. There remains no possibility of reconciliation. During pendency of present appeal, the appellant and the respondent have decided to obtain a

decree of divorce, therefore, they have filed the joint application for grant of divorce by mutual consent. The pendency of the first appeal would seriously affect the future of both the appellant and the respondent. Hence, it is prayed that in the light of the Apex Court judgment in the case of Amardeep Singh Vs. Harveen Kaur reported in AIR 2017 SC 4417, the cooling period of six months may be waived off. It is further stated that lot of efforts have been made by both the parties as well as this Court to dissolve the dispute amicably but the same has failed and respondent and appellant are adamant to live separately and there is no possibility of compromise between the parties in future.

The Apex Court in the case of Amardeep Singh Vs. Harveen Kaur(Supra) has held as under :-

Applying the above to the present petition, 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 13B(1) of separation of parties is already over before the first motion itself;

Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 4/13/2023 6:42:37 PM

ii)All efforts for mediation/conciliation including efforts in terms of Order XXXIIA 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."

In view of the above judgment passed by the Apex Court and taking into consideration the fact that now the parties have amicably settled the matter and are already living separately and there are no chances of any settlement between them, hence, the cooling period of six months is also waived off.

On the basis of aforesaid, the application filed by both the parties under Section 13(B) of the Act is allowed. The impugned judgment and decree dated 05.11.2022, passed by the Principal Judge, Family Court, Dhar, District Dhar(M.P.) is set aside and following decree is passed :-

i. The marriage solemnized between the appellant/husband and respondent/wife is dissolved.

No order as to costs.

Let a decree be drawn accordingly.

                               (S. A. DHARMADHIKARI)                              (PRAKASH CHANDRA GUPTA)
                                        JUDGE                                              JUDGE

                          pn




Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 4/13/2023
6:42:37 PM