Madras High Court
Revathi vs Kanagasabhapathy on 19 February, 2021
C.R.P.(MD)No.258 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.02.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P.(MD)No.258 of 2021
Revathi ... Petitioner
Vs.
Kanagasabhapathy ... Respondent
Prayer : Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order dated 01.02.2021
passed by the Sub-Court, Kovilpatti and to direct the Sub-Court,
Kovilpatti to number the un-numbered I.A.No. of 2021 in
H.M.O.P.No.174 of 2020.
For Petitioner : Mr.P.Subbaraj
ORDER
This civil revision petition has been filed to set aside the
order dated 01.02.2021 passed by the Sub-Court, Kovilpatti and to
direct the Sub-Court, Kovilpatti to number the un-numbered I.A.No.
of 2021 in H.M.O.P.No.174 of 2020.
2.The learned counsel appearing for the petitioner would
submit that the marriage of the petitioner and the respondent was
solemnized on 23.05.2019. Thereafter, due to matrimonial dispute
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C.R.P.(MD)No.258 of 2021
the petitioner and the respondent are living separately till date.
The petitioner received all the jewels and cash given to the
respondent at the time of marriage and the petitioner did not claim
any permanent alimony from the respondent herein. The grievance
of the petitioner is that both of them filed divorce petition under
Section 13B of the Hindu Marriage Act, 1955 and the same was
adjourned 07.06.2021. Therefore, the petitioner filed a petition to
advance the hearing. However, the papers were returned without
any reason. Therefore, the petitioner is before this Court to
number the above I.A and advance the hearing.
3.Heard the learned counsel appearing for the petitioner and
perused the materials available on record.
4.Admittedly, the petitioner and the respondent are living
separately. It is also an admitted fact that the petitioner lived with
her husband for a few days. The petition for divorce on mutual
consent is pending from 2020 onwards. There is also no claim
against each other. Considering the facts and circumstances of the
case it is always open to the Court to dispense with the cooling
period by applying the principles in the reported judgment of the
Apex Court in (2017) 8 SCC 746, Amardeep Singh Vs. Harveen
Kaur, wherein it is stated as follows:
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C.R.P.(MD)No.258 of 2021
''18. 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 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.
19. The waiver application can be filed one
week after the first motion giving reasons for the
prayer for waiver.
20. If the above conditions are satisfied, the
waiver of the waiting period for the second motion
will be in the discretion of the concerned Court.
21. 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
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C.R.P.(MD)No.258 of 2021
alternative rehabilitation.
22. Needless to say that in conducting such
proceedings the Court can also use the medium of
video conferencing and also permit genuine
representation of the parties through close relations
such as parents or siblings where the parties are
unable to appear in person for any just and valid
reason as may satisfy the Court, to advance the
interest of justice.
23.The parties are now at liberty to move the
concerned court for fresh consideration in the light
of this order.''
5.Therefore, the petitioner came up with the above petition to
number the above said I.A., to advance the hearing. Considering
the facts and circumstances of the case, the learned Sub Court,
Kovilpatti is directed to advance the hearing and dispose of the
above divorce petition in H.M.O.P.NO.174 of 2020, within a period
of four weeks from the date of receipt of a copy of this order.
6.With the above observations, this civil revision petition is
disposed of. No costs.
19.02.2021
Index :yes/No
Internet:yes/No
gns
NOTE: In view of the present lock down owing to COVID-19
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C.R.P.(MD)No.258 of 2021
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is presented
is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
The Sub-Court, Kovilpatti.
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C.R.P.(MD)No.258 of 2021
J.NISHA BANU, J.
gns
C.R.P.(MD)No.258 of 2021
19.02.2021
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