Orissa High Court
Aliva Das vs Biswajit Das ....... Opposite Party on 7 August, 2025
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.19446 of 2025
(In the matter of an application under
Articles 226 and 227 of the Constitution of India)
Aliva Das ....... Petitioner
-Versus-
Biswajit Das ....... Opposite Party
Advocate for the parties
For Petitioner : Mr. S.P. Barik, Advocate
For Opposite Party : None
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CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing & Judgment: 07.08.2025
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S.K. Mishra, J.
1. The issue involved in the present writ petition is
regarding legality of order dated 24.04.2025 as at
Annexure-3, passed by the learned Judge, Family Court,
Cuttack in C.P. No.632 of 2023, vide which the proceeding
initiated under Section 28(2) of the Special Marriage Act,
1954 for divorce by mutual consent was dropped by the
learned Court below on technical ground that the same is
pending for more than 18 months. Since the present
Opposite Party is also one of the Petitioners in C.P. No.632
of 2023, the matter is taken up for hearing and disposal at
the stage of admission without noticing the Opposite Party-
Husband.
2. Heard Mr. Barik, learned Counsel for the
Petitioner.
3. Admittedly, C.P. No.632 of 2023 was preferred
by the Petitioner-wife so also Opposite Party-husband by
filing a joint application under Section 28(2) of the Special
Marriage Act, 1954 for passing a decree to dissolve the
marriage between them.
4. As is revealed from the impugned order dated
24.04.2025, the learned Court below dropped the said
proceeding referring to Section 13(B)(2) of the Hindu
Marriage Act, 1955 on the ground that 18 months have
already elapsed. It is further revealed from the said order
dated 24.04.2025 that on the said date, the Petitioner No.1,
who is the present writ petitioner, was present, whereas
the Petitioner No.2(present Opposite Party) remained
absent. However, the learned Counsel for the Petitioner
No.2 moved an application on the said date for time on the
ground of his ailment. The said petition stood rejected and
the proceeding in C.P. No.632 of 2023 was dropped on
presumption that the Petitioners are not interested to
proceed with the said case, with further observation that 18
months have already elapsed in between.
5. Learned Counsel for the Petitioner submits,
though joint application for divorce by mutual consent was
moved under Section 28 (2) of the Special Marriage, Act,
1954, but the learned Court below, referring to Section
13(B)(2) of the Hindu Marriage Act, 1955, dropped the said
proceeding on the ground that 18 months have already
elapsed in the meantime.
6. Relying on the judgment of this Court in 2004
(II) OLR 172 (Debmeet Patro Vs. Family Court, Cuttack
and another), learned Counsel for the Petitioner further
submits, the provisions enshrined under Section 28(2) of
the Special Marriage Act, 1954, which is pari materia to
Section 13(B)(2) of the Hindu Marriage Act, 1955, is
directory, not mandatory. The learned Court below should
not have dropped C.P. No.632 of 2023 despite presence of
the Petitioner-wife and moving an application for time by
the Petitioner No.2-husband on medical ground.
Accordingly, he prays for quashing of the said order dated
24.04.2025 and direct the Court below to proceed further
on merit and conclude the said proceeding at the earliest.
7. Though it has not been pleaded so, a query
being made, learned Counsel for the Petitioner further
submits, in the office note in C.P. No.632 of 2023, some
defects were pointed out by the office of the learned Court
below and the parties were directed to remove the defects.
Because of some unavoidable circumstances, the defects
could not be removed and the matter got lingered beyond
18 months, as prescribed under Section 28 (2) of the
Special Marriage Act, 1954.
8. In view of such submission made by learned
Counsel for the Petitioner, on examination of the provisions
under Section 13(B)(2) of the Hindu Marriage Act, 1955 vis-
à-vis Section 28 (2) of the Special Marriage Act, 1954, it is
revealed that both the said provisions are similar. The
Court, before whom such an application is moved for
divorce by mutual consent, has to deal with such
application not earlier than six months after the date of
presentation of the petition and not later than 18 months
after the said date, if the said petition is not withdrawn
during the said period.
9. For ready reference, Section 28 of the Special
Marriage Act, 1954 is reproduced below.
"28. Divorce by mutual consent.- (1)
XXX XXX XXX
(2) On the motion of both the parties
made not earlier than six months after
the date of the presentation of the
petition referred to in sub-section (1)
and not later than eighteen months
after the said date, if the petition is
not withdrawn in the meantime, the
district Court shall, on being satisfied,
after hearing the parties and after making
such inquiry as it thinks fit, that a marriage
has been solemnized under this Act and
that the averments in the petition are true,
pass a decree declaring the marriage
to be dissolved with effect from the date of
decree.
(Emphasis Supplied)
10. Section 28 (1) of the Special Marriage Act, 1954
read with Section 28 (2) of the said Act envisages a total
waiting period of one and half years from the date of
separation to move the motion for a decree of divorce. The
said period under Section 28(2) of the Act, 1954 was laid
down to enable the parties to have a rethink so that the
Court grants divorce by mutual consent only if there is no
chance for reconciliation. As per the provisions enshrined
under Section 28 of the Act, 1954, if such petition is not
withdrawn within the statutory period, the Court shall, on
being satisfied, after hearing the parties and after making
such inquiry as it thinks fit, has to pass a decree of divorce
declaring the marriage to be dissolved with effect from the
date of the decree.
11. Law 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. Law is also well settled
that the provisions enshrined under Section 28 (2) of the
Special Marriage Act, 1954 is not mandatory but directory
and that it would be open to the Court to exercise its
discretion to waive the requirement of Section 28 (2), having
regard to the facts and circumstances of the case, if there is
no possibility of reconciliation between the spouses, and
the waiting period would serve no purpose except to
prolong their agony. Law is further well settled that the
Courts must not encourage matrimonial litigation, as
prolongation of such litigation is detrimental to both the
parties who lose their young age in chasing multiple
litigations. Thus, adopting a hyper-technical view can be
counterproductive as pendency of matrimonial proceeding
itself causes pain, suffering and harassment and,
consequently, it is the duty of the Court to ensure that
matrimonial matters are amicably resolved, thereby
bringing the agony, affliction, and torment to an end. In
this regard, the Courts only have to enquire and ensure
that the settlement between the parties is achieved without
pressure, force, coercion, fraud, misrepresentation, or
undue influence, and that the consent is indeed sought by
free will and choice and the autonomy of the parties is not
compromised.
12. Admittedly, the statutory cooling-off period of six
months that the parties have to wait for a decree of
dissolution of marriage has passed since long. That apart,
the proceeding was dropped by the Court below on the
ground of expiry of maximum period of eighteen months.
Admittedly, during the said interregnum period of six
months to eighteen months, the said application moved
under Section 28(2) of the Act, 1954 was never withdrawn
by any of the parties to the said proceeding. Rather, the
Petitioner No.2-husband moved an application for time on
24.04.2025, which stood rejected and learned Court below
presumed vide the impugned order that because of delay on
the part of the Petitioners to expedite hearing of the C.P.
No.632 of 2023, the parties are not interested to pursue the
said application moved under Section 28 (2) of the Act,
1954. Hence, to secure the ends of justice, this Court is of
the view that the impugned order dated 24.04.2025 passed
in C.P. No.632 of 2023 deserves interference.
13. Accordingly, the impugned order dated
24.04.2025 passed in C.P. No.632 of 2023, as at Annexure-
3, is set aside. C.P. No.632 of 2023 is restored to its file.
The Petitioner and the Opposite Party, who is also the
Petitioner No.2 in C.P. No.632 of 2023, are permitted to
remove defects, if any, within two weeks hence. On removal
of defects, the Judge, Family Court, Cuttack shall proceed
further in C.P. No.632 of 2023 in accordance with law and
try to conclude the said proceeding at the earliest,
preferably within two months from the date of removal of
defects.
14. With the said observation and direction, the writ
petition stands allowed and disposed of.
15. Urgent certified copy of this judgment be
granted as per rules.
...............................
S.K. MISHRA, J.
Orissa High Court, Cuttack.
Dated, the 7th August, 2025/Kanhu Signature Not Verified
Digitally Signed
Signed by: KANHU BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 13-Aug-2025 19:25:46
