Suresh Barik vs Eliva Sahoo
2021 Latest Caselaw 12675 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No.37711 Of 2021
                           (Through hybrid mode)

        Suresh Barik                          ....             Petitioner

                                         Mr. Subrat Mishra, Advocate

                                   -versus-

        Eliva Sahoo                           ....       Opposite Party
                                                       Md. M.D. Riaz,
                                                            Advocate


                     CORAM: JUSTICE ARINDAM SINHA
Order                             ORDER
No.                              09.12.2021

 1.

1. Mr. Mishra, learned advocate appears on behalf of petitioner-

husband. He submits, impugned is order dated 11th November, 2021 of

the Family Court, whereby application for waiver was made after the

first motion for divorce by mutual consent, was rejected.

2. He relies on judgment of Supreme Court in Amardeep Singh

v. Harveen Kaur reported in (2017) 8 SCC 746, paragraph-19 and

submits, conditions in clauses (i) to (iv) in said paragraph stands

fulfilled.

3. He submits, the petition for divorce by mutual consent was

jointly made on 21st September, 2021. Petitioner and opposite party

thereafter jointly filed the waiver application on 9th November, 2021.

// 2 //

He draws attention to the petition for mutual divorce and demonstrates

that both parties said they were married on 12th May, 2014. They have

been separate for more than four years. They do not have monetary

claim against each other and the minor children are to be with opposite

party-wife. Mr. Mishra also draws attention to annexure-2 being

conciliation report issued by Counselor, Family Court, Bhadrak saying

as follows:

"Both the parties were present before the counsel and they have heard and it was found that there is no hope for their reconciliation and thus, the conciliation got failed and the matter may be forwarded to the Court for further order as deemed just and proper to the learned Court."

4. Md. Riaz, learned advocate appears on behalf of opposite party- wife.

5. In paragraph-19 of Amardeep Singh following conditions was said:

"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

// 3 //

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."

6. It appears that the conditions to be fulfilled, as declared by the

Supreme Court, have been fulfilled by the parties. In the

circumstances, impugned order is set aside and the waiver

application restored to the Family Court for reconsideration. The

Family Court will deal with and dispose of the application within

three weeks of communication of this order.

7. The writ petition is disposed of.

(Arindam Sinha) Judge Sks