Madhya Pradesh High Court
Ankur Sonwani vs Smt. Neelam Dhariwal on 4 October, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:50910
1 MP-5388-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 4 th OF OCTOBER, 2024
MISC. PETITION No. 5388 of 2024
ANKUR SONWANI
Versus
SMT. NEELAM DHARIWAL
Appearance:
Shri Bhupendra Kumar Tiwari - Advocate for petitioner.
Shri Raghvendra Sharma - Advocate for respondent.
ORDER
This petition under Article 227 of the Constitution of India has been
filed against the order dated 04.09.2024 passed by the learned Family Court,
Jabalpur in RCSHM No.888 of 2024 by which the application filed by
parties under Section 13-B of the Hindu Marriage Act, 1955 has been
rejected.
It is submitted that the parties are not fulfilling any marital obligations
towards each other and they are living separately since 12.11.2022 and there
is no possibility of reconciliation. It is further submitted that the present case
is squarely covered by the order passed by this Court in the case of Mrinali
Sharma W/o Shri Amit Sharma vs Amit Sharma decided on 04.07.2024 in
MP No.3119 of 2024 wherein it is observed as follows :
"2. It is undisputed that the marriage between the
parties has irretrievably broken down as many
attempts have been made for settlement and reunion
of the parties but all failed and thus parties have
decided not to live together and agree for mutual
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dissolution of marriage. The parties are not fulfilling
any marital obligations towards each other and they
are living separately since 20.05.2023 and there is no
slightest of possibility of reconciliation.
3. Learned counsel for the petitioner submits that both
the parties have filed joint petition under Section 13-B
of the Hindu Marriage Act, 1955 for divorce by
mutual consent before the learned Family Court,
Shahdol. He further submits that an application for
waiver of cooling period of 6 months as stipulated in
sub-section 2 of Section 13-B of Hindu Marriage Act,
1955 was filed before the learned Family Court
contending therein that statutory period of 6 months is
not mandatory, but directory in nature, which can be
waived off in the interest of justice.
4. The learned Family court adjourned the case for
hearing on 21.11.2024. Learned family court has
rejected their application by the impugned
order. Hence this petition is filed before this court.
5. The Supreme Court in the case of Amardeep Singh
Vs. Harveen Kaur reported in (2017) 8 SCC 746 has
held as under:-
"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.
The waiver application can be filed one week after the
first motion giving reasons for the prayer for waiver.
If the above conditions are satisfied, the waiver of the
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waiting period for the second motion will be in the
discretion of the Court concerned.
20. Since we are of the view that the period
mentioned in Section 13B(2) is not mandatory but
directory, it will be open to the Court to exercise its
discretion in the facts and circumstances of each case
where there is no possibility of parties resuming
cohabitation and there are chances of alternative
rehabilitation."
6. After considering the above decision in the case of
Amardeep Singh (supra) this Court is of the
considered view that marriage of both the parties was
solemnized on 10.05.2023. They are not fulfilling any
marital obligations towards each other and further
they are living separately since 20.05.2023 and there
is no possibility of reconciliation because both the
parties have decided that they will not live together
and they are agreed for dissolution of their marriage
by mutual consent. The period mentioned in section
13-B(2) is not mandatory and it is only directory in
nature and it can be waived off in the interest of
justice. But the Family court has committed any error
by rejecting the application filed by the parties.
7. In view of the aforesaid, the impugned order dated
27.05.2024 cannot be sustained and is hereby set
aside. The trial court is directed to dispose of the joint
petition under Section 13-B of Hindu Marriage Act,
1955 filed by both the parties in accordance with law
within a period of 15 days from the date of receipt of
certified copy of this order."
The counsel appearing for the respondent does not dispute the
aforesaid proposition.
In the present case, the parties are residing separately and they have
specifically pleaded that there is no possibility of reunion. The Hon'ble
Supreme Court in the case of Amit Kumar vs Suman Beniwal : Civil Appeal
No.7650 of 2021 decided on 11.12.2021 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
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Amardeep Singh v. 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.
24. In Devinder Singh Narula v. Meenakshi Nangia (2012) 8 SCC
580, this Court observed:--
"8. We have carefully considered the submissions made on behalf
of the parties and have also considered our decision in Anil Kumar
Jain case [Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 :
(2009) 4 SCC (Civ) 226]. It is no doubt true that the legislature
had in its wisdom stipulated a cooling off period of six months
from the date of filing of a petition for mutual divorce till such
divorce is actually granted, with the intention that it would save
the institution of marriage. It is also true that the intention of the
legislature cannot be faulted with, but there may be occasions
when in order to do complete justice to the parties it becomes
necessary for this Court to invoke its powers under Article 142 in
an irreconcilable situation. In fact, in Kiran v. Sharad Dutt [Kiran
v. Sharad Dutt, (2000) 10 SCC 243], which was considered in Anil
Kumar Jain case [Anil Kumar Jain v. Maya Jain, (2009) 10 SCC
415 : (2009) 4 SCC (Civ) 226], after living separately for many
years and 11 years after initiating the proceedings under Section
13 of the Hindu Marriage Act, the parties filed a joint application
before this Court for leave to amend the divorce petition and to
convert the same into a proceeding under Section 13-B of the Act.
Treating the petition as one under Section 13-B of the aforesaid
Act, this Court by invoking its powers under Article 142 of the
Constitution granted a decree of mutual divorce at the stage of the
SLP itself. In different cases, in different situations, this Court had
invoked its powers under Article 142 of the Constitution in order
to do complete justice between the parties."
25. In Soni Kumari v. Deepak Kumar, this Court exercised its
power under Article 142 of the Constitution of India to waive the
statutory waiting period of six months, where the wife had
received the entire compensation of Rs. 15 lacs in full and final
settlement of her claims as per the settlement arrived at between
the parties, and further granted a decree of divorce to the parties
by mutual consent.
26. In Anil Kumar Jain v. Maya Jain, this Court held:--
"29. In the ultimate analysis the aforesaid discussion throws up
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two propositions. The first proposition is that although
irretrievable breakdown of marriage is not one of the grounds
indicated whether under Section 13 or 13-B of the Hindu Marriage
Act, 1955 for grant of divorce, the said doctrine can be applied to a
proceeding under either of the said two provisions only where the
proceedings are before the Supreme Court. In exercise of its
extraordinary powers under Article 142 of the Constitution the
Supreme Court can grant relief to the parties without even waiting
for the statutory period of six months stipulated in Section 13-B of
the aforesaid Act."
27. For exercise of the discretion to waive the statutory waiting
period of six months for moving the motion for divorce under
Section 13B(2) of the Hindu Marriage Act, the Court would
consider the following amongst other factors : -
(i) the length of time for which the parties had been married;
(ii) how long the parties had stayed together as husband and wife;
(iii) the length of time the parties had been staying apart;
(iv) the length of time for which the litigation had been pending;
(v) whether there were any other proceedings between the parties;
(vi) whether there was any possibility of reconciliation;
(vii) whether there were any children born out of the wedlock;
(viii) whether the parties had freely, of their own accord, without
any coercion or pressure, arrived at a genuine settlement which
took care of alimony, if any, maintenance and custody of children,
etc.
28. In this Case, as observed above, the parties are both well-
educated and highly placed government officers. They have been
married for about 15 months. The marriage was a non-starter.
Admittedly, the parties lived together only for three days, after
which they have separated on account of irreconcilable
differences. The parties have lived apart for the entire period of
their marriage except three days. It is jointly stated by the parties
that efforts at reconciliation have failed. The parties are unwilling
to live together as husband and wife. Even after over 14 months of
separation, the parties still want to go ahead with the divorce. No
useful purpose would be served by making the parties wait, except
to prolong their agony.
29. The appeal is, therefore, allowed. The impugned order dated
17th November, 2021 passed by the High Court and the impugned
order dated 12th October, 2021 passed by the Family Court,
Hissar are set aside.
30. In the facts and circumstances of this case, this Court deems it
appropriate to exercise its power under Article 142 of the
Constitution of India, to grant the Appellant and the Respondent a
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decree of divorce by mutual consent under Section 13B of the
Hindu Marriage Act, 1955, waiving the statutory waiting period of
six months under Section 13(B)(2) of the said Act."
Considering the aforesaid, the present petition is disposed off and the
order passed in the case of Mrinali Sharma W/o Shri Amit Sharma (supra)
shall apply to the present case mutatis mutandis . Accordingly, the impugned
order dated 04.09.2024 cannot be sustained and is hereby set aside. The
cooling off period of six months is waived off. The trial Court is directed to
dispose of the joint petition under Section 13-B of the Hindu Marriage Act,
1955 filed by both the parties in accordance with law within a period of one
month from the date of receipt of certified copy of this order.
With these observations, the present petition is disposed off finally. No
order as to costs.
(VISHAL MISHRA)
JUDGE
sj
