Himanshu Joshi vs Smt. Leena Vyas @ Laxmi W/O ...
2023 Latest Caselaw 13095 MP

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                                                         M.P. No. 4159/2023


        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA

                   ON THE 11th OF AUGUST, 2023

                   MISC. PETITION No. 4159 of 2023

BETWEEN:-
HIMANSHU JOSHI S/O ABHAY KUMAR JOSHI, AGED ABOUT 33
YEARS, OCCUPATION: BUSINESS C 1 ANJUSHA COLONY MAKSHI
ROAD, UJJAIN (MADHYA PRADESH)
                                                     .....PETITIONER
(MS. NENSI RATHI, LEARNED COUNSEL FOR THE PETITIONER.)

AND
SMT. LEENA VYAS @ LAXMI W/O HIMANSHU JOSHI D/O
PURSHOTTAM VYAS, AGED ABOUT 32 YEARS, OCCUPATION:
BUSINESS 129 LI.G. VIJAY NAGAR, UJJAIN ROAD. DEWAS VIY
NAGAR NAGAR DEWAS. CURRENT ADD. HOUSE NO. 05 KHATRI
ABHISHEK NAGAR, NANAKHEDA DISTRICT UJJAIN (MADHYA
PRADESH)
                                                   .....RESPONDENTS
(SHRI VIJAY GULANI, LEARNED COUNSEL FOR THE RESPONDENT.)


      This petition coming on for hearing this day, the court passed
the following: :
                             ORDER

1. The petitioner has filed the present petition being aggrieved by the order dated 23.6.2023 whereby the Family Court has fixed the case on 28.09.2023 for passing the decree of divorce under Section 13-B of Hindu Marriage Act, 1955 (hereinafter referred to as 'Act of 1955').

2. The marriage of the petitioner and respondent was solemnized

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M.P. No. 4159/2023

on 4.6.2015 under Hindu customs and rituals. Because of differences arose between them, they stopped living as husband and wife together since last more than two years and started living separately by way of mutual consent. They have decided to divorce on certain terms and conditions. They have filed an application under Section 13-B of the Act, 1955 on 28.3.2023 before the Family Court, Ujjain.

3. The petitioner and respondent requested the learned Family Court to decide the petition for divorce before the cooling period of 6 months as the petitioner wish to go out of India and the respondent wants to remarry.

I have heard learned counsel for the parties and perused the record.

4. Learned counsel appearing on behalf of petitioner and the respondent submit that the parties have no objection for granting the decree of divorce.

5. The marriage of the petitioner and respondent was solemnized on 4.6.2015. According to them they are living separately since last more than two eyars. They approached the Family Court by way of petition under Section 13-B of the Act, 1955 seeking dissolution of marriage by way of decree of divorce. Vide order dated 23.6.2023 declined to grant the decree before expiry of 6 months' cooling period and fixed the case for 28.9.2023.

6. Section 13-B and 14 of the Act,1955 are two independent provisions. Under Section 13-B, an application for dissolution of marriage by way of decree of divorce may be presented to the Court by both the parties on the ground that they have been living separately for

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M.P. No. 4159/2023

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. As per sub-section (2) of Section 13-B on the motion of both the parties made not earlier than six months after the date of the presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall pass a decree of divorce after being satisfied and hearing the parties. The Supreme Court in the case of Amardeep Singh vs Harveen Kaur : (2017) 8 SCC 746 has held that statutory period of six months specified in section 13-B 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 all efforts to reunite the parties have failed and there is no likelihood of success, the parties have genuinely settled their differences and waiting period will only prolong their agony, the said period can be condoned. In number of cases, the Supreme Court as well as this Court has condoned the delay of six months looking to the urgency and hardship due to the relationship between husband and wife.

7. In the light of the judgment of the apex Court in the case of Amardeep Singh (supra), this petition is allowed and the Family Court is directed to prepone the date and fix the case and pass the decree as per section 13-B of Act of 1955.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2023.08.14 17:59:35 +05'30'