Madhya Pradesh High Court
Smt. Kanak @ Chitra W/O Shri Girish ... vs Girish on 20 May, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 20 th OF MAY, 2024
MISC. PETITION No. 2548 of 2024
BETWEEN:-
SMT. KANAK @ CHITRA W/O SHRI GIRISH VADHVANI
D/O BHISHAM CHELANI, AGED ABOUT 41 YEARS,
OCCUPATION: HOUSEHOLD WORK THROUGH SHRI
BHISHAM CHELANI 99 B KE SINDHI COLONY
MAINROAD INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI MANOJ KUMAR GHODE, ADVOCATE.)
AND
GIRISH S/O SHRI RAJKUMAR, AGED ABOUT 42 YEARS,
OCCUPATION: FUTKAR 38-A PRINCE COLONY PRABHU
NAGAR BHOPAL (MADHYA PRADESH)
.....RESPONDENT
(BY MS. NIVEDITA SHARMA, ADVOCATE.)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
01. Both the parties heard.
02. Both the parties have filed this joint miscellaneous petition under
Article 227 of the Constitution of India being aggrieved by the impugned order
dated 12.04.2024 passed in HM Case No.486/2024 by First Principal Judge,
Family Court, Indore whereby a joint application for waiving off six months'
cooling period for filing the petition for mutual divorce has been dismissed.
03. Brief facts of the case are that marriage of the applicant No.1 Kanak
has been solemnized with applicant No.2 Girish on 12.11.2009 and out of their
wedlock they had one son and one daughter which are at present residing with
the applicant No.1 Kanak and they are living separately since 23.04.2018. They
have filed a joint petition under Section 13-B of Hindu Marriage Act, 1955 (for
short "HM Act") for mutual divorce. During the pendency of the case, they
have filed an application for waiving off the cooling period of six months but
same has been dismissed by the trial Court vide order dated 12.04.2024. Being
aggrieved by the same, petitioner has preferred the present petition.
04. Learned counsel for both the parties submits that for last six years
both the parties are living separately and no hope remains that they may live
together. Other proceedings under Section 9 of HM Act and Section 12 of the
Protection of Women from Domestic Violence Act, 2005 were also instituted
but same has been withdrawn. The impugned order passed by the Court below
is against the law hence, prays that impugned order be set aside.
05. In terms of Section 13B(1) of the Hindu Marriage Act, the parties to a
marriage might file a petition for dissolution of marriage, by decree of divorce
by mutual consent, on the ground that that they have been living separately for a
period of one year or more, and that they have not been able to live together
and have mutually agreed that the marriage should be dissolved.
06. Sub-section (2) of Section 13B of the Hindu Marriage Act provides
that the Court shall pass a decree of divorce, declaring the marriage to be
dissolved with effect from the date of the decree, on the motion of both the
parties, made not earlier than six months after the date of presentation of the
petition referred to in subsection (1) of Section 13B, but not later than 18
months after the said date, after making necessary enquiries, if the petition is not
withdrawn in the meantime.
07. Section 14 provides that notwithstanding anything contained
elsewhere in the Hindu Marriage Act, it shall not be competent to the Court to
entertain any petition for dissolution of a marriage by a decree of divorce,
unless on the date of presentation of the petition, one year has elapsed since the
date of marriage.
08. In terms of the proviso to Section 14, the Court may, on application
made to it, in accordance with such rules as may be made by the High Court,
allow a petition to be presented before one year has elapsed since the date of
marriage, on the ground that the case is one of exceptional hardship to the
petitioner or of exceptional depravity on the part of the respondent. In this case,
the petition under Section 13B was filed after one year had elapsed from the
date of marriage.
09. The Hon'ble Apex Court in case of Amit Kumar V/s Suman
Beniwal, 2021 SCC OnLine SC 1270 in paragraph No.23 has held as under:
"23. It is well settled that a judgment is a precedent for the issue of law that is
raised and decided. A judgment is not to be read in the manner of a statute and
construed with pedantic rigidity. In Amardeep Singh Vs. Harveen Kaur (supra),
this Court held that the statutory waiting period of at least six months mentioned in
Section 13B (2) of the Hindu Marriage Act was not mandatory but directory and
that it would be open to the Court to exercise its discretion to waive the
requirement of Section 13B(2), having regard to the facts and circumstances of the
case, if there was no possibility of reconciliation between the spouses, and the
waiting period would serve no purpose except to prolong their agony."
10. In the instant case, both the parties are living separately since last six
years and both of them stated that all the efforts for reconciliation has been
failed and they are unwilling to live together as husband and wife, they had even
settled the other disputes and accordingly other matters have been withdrawn.
Both the parties are quite mature and they have filed divorce petition on the
basis of mutual consent. Before the trial Court resolution proceedings has also
failed, therefore, in view of the aforesaid, the learned trial Court was not justified
in rejecting the application for waiving off the period of six months as provided
under Section 13B (2) of HM Act and thus, no fruitful purpose would be
served by making the parties to wait.
11. In view of the above, this Miscellaneous Petition stands allowed. The
impugned order dated 12.04.2024 passed by the Principal Judge, Family Court
Indore in HM Case No.486/2024 is hereby set aside. Since the period
mentioned in Section 13B(2) of HM Act is not mandatory but discretionary, the
concerned Family Court is hereby directed to decide the petition under Section
13B of HM Act pending before it afresh, exercising its discretion akin to the
facts and circumstances of the case.
12. With the aforesaid directions, this petition is disposed of.
13. Both the parties are directed to appear before the trial Court on
28.05.2024.
Certified copy, as per Rules.
(ANIL VERMA)
JUDGE
Divyansh
