Uttarakhand High Court
AO/202/2023 on 24 May, 2023
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGES'S ORDERS
No
and Registrar's
order with
Signatures
24.05.2023 AO No. 202 of 2023
Hon'ble Vipin Sanghi, C.J.
Hon'ble Rakesh Thapliyal, J.
1. Mr. Navnish Negi, learned counsel for the
appellant.
2. Issue notice.
3. Mr. Himanshu Aswal, learned counsel appears
and accepts notice on behalf of the respondent.
4. The present Appeal, under Section 19 of the
Family Courts Act, 1984 is directed against the
judgment and order dated 10.05.2023, passed by the
learned Judge, Family Court, Haldwani in Civil Case No.
148/2023. The application moved by the parties to
seek waiver of the statutory waiting period of six
months, before moving the Second Motion Petition,
under Section 13B(2) of the Hindu Marriage Act, 1955,
has been rejected by the learned Judge, Family Court,
by the impugned order.
5. The admitted position is that the parties, who
were married on 07.02.2022, separated on
05.04.2022. They presented the First Motion Petition,
under Section 13B(1), to seek divorce by mutual
consent on 27.04.2023. Since they have remained
separated for over a year, they were entitled to
maintain the First Motion Petition under Section
13B(1). However, their application to seek waiver of
the statutory waiting period of six months, before
moving the Second Motion Petition, under Section
13B(2) has been rejected by the learned Judge, Family
Court, since they have not remained separated for 18
months before moving the First Motion Petition. The
learned Judge has rejected the reliance placed by the
parties on Amit Kumar v. Suman Beniwal, 2021
OnLine SC 1270, by observing that in the said case
the Supreme Court had exercised its powers under
Article 142 of the Constitution of India, to pass a
decree of divorce by mutual consent, while waiving the
statutory period of six months, under Section 13B(2) of
the Hindu Marriage Act. That power does not inhere in
the Family Courts.
6. We have heard learned counsel for the appellant.
7. Reliance placed by Mr. Negi, learned counsel for
the appellant, on paragraph no. 23 of the judgment in
Amit Kumar (supra), is misplaced, since the said
paragraph cannot be read in isolation, and in ignorance
of the earlier judgment of the Supreme Court in
Amardeep Singh v. Harveen Kaur, (2017) 8 SCC
746.
8. The Supreme Court in Amardeep Singh (supra)
has clearly held in paragraph no. 18 that where the
Court dealing with a matter, "under Section 13B(2) of
the Hindu Marriage Act" is satisfied that a case is made
out to waive the statutory period under Section 13B(2),
it can do so after considering, inter alia, the fact that
"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".
9. The aforesaid condition is not satisfied in the
facts of the present case. The Supreme Court in Amit
Kumar (supra) has not doubted the ratio of the
judgment of the Supreme Court in Amardeep Singh
(supra). Since both the judgments have been rendered
by a Bench of two Hon'ble Judges, there is no question
of reading Amit Kumar (supra) to even impliedly
overruling the judgment in Amardeep Singh (supra).
10. We, therefore, do not find any merit in the
present Appeal. The same is, accordingly, dismissed.
11. Consequently, pending application(s), if any, also
stand disposed of accordingly.
(Rakesh Thapliyal, J.) (Vipin Sanghi, C.J.)
24.05.2023 24.05.2023
Rahul
