Telangana High Court
Smt. Namala Harika vs Sri. Nimmala Sai Vishwambadhar on 5 November, 2021
Bench: A.Rajasheker Reddy
1
HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
CIVIL REVISION PETITION No.1549 of 2021
ORDER:
This Civil Revision Petition is filed against order dated
05.08.2021 in I.A.No.162 of 2021 in FCOP No.351 of 2021,
wherein and whereby the Court below dismissed the application
filed under Order 109(2) of Civil Rules of Practice for
advancement of the matter for dispensing with the cooling period
of six months for applying divorce on mutual consent.
Learned counsel for the parties submits that after the
marriage, the 1st petitioner joined the matrimonial house of the
2nd petitioner and they lived happily for a period of three months
i.e., till May, 2020. Thereafter, due to serious differences arose
between them, the 1st petitioner abruptly left the matrimonial
house in the month of May, 2020. Efforts made by the elders of
both the parties failed and the marriage has been broken down
irretrievably and that there is no chance for reunion between
them, as such, they decided to dissolve their marriage by mutual
consent before the Judge, Family Court and accordingly, they
filed FCOP No.351 of 2021 for divorce by mutual consent. He
also submits that along with FCOP, they both filed two
interlocutory applications i.e., I.A.No.162 of 2021 for
advancement of the FCOP and I.A.No.163 of 2021 regarding the
waiving of Cooling of period. In the affidavit filed in support of
I.A.No.162 of 2021, it is categorically mentioned that both the
petitioners 1 and 2 are living separately since May, 2020 to till
date and the cooling of period to be relaxed and also it is pleaded
that there is no possibility of reunion between the petitioners and
also both parties agreed to advance the matter for thepurpose of
waiting of cooling of period. He also submits that the 2nd
petitioner more specifically stated about his going to Australia
and settle there. He submits that without considering all these
aspects, the trial Court dismissed the application. He also
submits that both the parties entered into a Memorandum of
Understanding on 12.05.2021 settling all the disputes and a
joint affidavit is also filed on 29.10.2021, as such, no useful
purpose will be served in waiting for the cooling period. In
support of his contention, he relied on the judgment reported in
Amardeep Singh v. Harveen Kaur (2017 (8) SCC 746) and also
judgment of learned Single Judge of Punjab and Haryana High
Court in CR No.2199 of 2020, dated 02.09.2020.
In this case, it is to be seen that the both the parties are
present physically on 01.11.2021 in the court and both of them
have agreed for divorce on mutual consent and in pursuance of
the same, a memorandum of understanding was also entered on
12.05.2021 and a joint affidavit is also filed on 29.10.2021
settling all the disputes stating that there is no chance of
resumption of cohabitation and conjugal relationship. They also
submit that they are unable to live together and there are no
chances of reunion and they both could not reconcile themselves
for leading happy marital life. The Hon'ble Supreme Court in
Amardeep Singh (supra) observed as follows:
"14. The Court must be satisfied that the parties were living
separately for more than the statutory period and all efforts at
mediation and reconciliation have been tried and have failed and
there is no chance of reconciliation and further waiting period will
only prolong their agony."
By following the aforesaid principle of law, a learned
Single Judge of Punjab and Haryana High Court in CR
No.2199 of 2020, observed the waiting period mentioned in
Section 13-B(2) of the Act of 1955 is not mandatory and only
directory. It was observed that it would be open to the Court
to exercise its discretion on the strength of the facts and
circumstances of the individual case and waive the statutory
period. Broadly, such waiver can be considered if : (i) the
statutory period of six months specified in Section 13-B(2), in
addition to the statutory period of one year separation of
parties under Section 13-B(1) is already over before the first
motion itself: (ii) All efforts for mediation/conciliation to re-
unite the parties have failed and there is no likelihood of
success in that direction by further efforts; (iii) the parties
have genuinely settled their differences, including alimony,
child custody or other pending issues and; (iv) the waiting
period will only prolong their agony. In the said case, it is also
observed that the petitioners have executed a memorandum of
understanding settling all issues and are educated and that
they would therefore be presumed to know as to what would
be in their best interest.
In view of the principle laid down in the aforesaid
judgment and also the facts and circumstances of the case,
this Court is of the considered opinion that no useful purpose
will be served in insisting the parties to wait for cooling
period, which is meant for reconciliation. All efforts made by
both the parties and also an attempt made by this Court did
not bear any fruitful results. In view of the same, the
impugned order dated 05.08.2021 in I.A.No.162 of 2021 is set
aside and the Court below is directed to advance the FCOP
and proceed further, without insisting the parties for cooling
period.
Accordingly, the Civil Revision Petition is allowed. There
shall be no order as to costs. As a sequel thereto, miscellaneous
petitions, if any, shall stand closed.
______________________________
A.RAJASHEKER REDDY, J
05.11.2021
kvs
HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
Civil Revision Petition No.1549 of 2021
05.11.2021
kvs
