The Allahabad High Court recently comprising of a bench of Justice Rakesh Srivastava and Justice Ajai Kumar Srivastava-I while dealing with a case of divorce said that no family court should force parties into mediation if the marriage has already broken down. This judgement was made in the divorce case filed by Anamika Srivastava. The Allahabad HC bench of Justice Rakesh Srivastava and Justice Ajay Kumar Srivastava addressed the case. The bench mutually agreed on the fact that a family court should not force the separated couple to engage in mediating if the marriage has “irretrievably broken down”. (Anamika Srivastava v. Anoop Srivastava)
Facts of the case
The Court was hearing an appeal filed by Anamika Srivastava (wife) under Section 19 of the Family Courts Act, 1984, challenging a Family Court order (Principal Judge, Family Court, Barabanki). The family court denied her and the Respondent's (husband's) request to waive the six-month waiting period required under Section 13-B(2) of the Hindu Marriage Act, 1955 [Divorce by mutual consent] for a motion to grant a divorce decree based on mutual consent. Before the Family Court, the parties stated that they have been living apart for more than ten years; that before the Mediation Centre, the parties had freely, on their own accord, and without coercion or pressure, reached a joint settlement. In these circumstances, the six-month waiting period should be waived and a divorce decree issued immediately. However, the Family Court denied their application on the grounds that, according to the order, the parties had not appeared before the mediation centre and, as a result, there was no good reason to waive the statutory period of six months. It should be noted that Section 13-B(2) of the Hindu Marriage Act provides for a six-month cooling period from the date of filing of the divorce petition under Section 13-B(1) in the event that the parties change their minds and resolve their differences. If the parties still want to divorce after six months and file a motion, the Court must grant a divorce decree declaring the marriage dissolved with effect from the date of the decree after making such inquiries as it considers fit. However, in this case, the parties requested that the court waive the 6-month waiting period because their marriage had irreparably broken down.
Court's observations and Judgment
The Court noted that the discretion to waive statutory period of six months is a guided discretion for consideration of the interest of justice where there is no chance of reconciliation and the parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13-B(2) of the Act.
Further, the Court observed that Section 9 of the Family Courts Act makes it obligatory on the part of the Family Court to endeavor, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute.
However, the Court added, "the Court is not supposed to act in a mechanical manner, and force the parties to engage in mediation where the marriage has irretrievably broken down."
The bench observed, "In the case at hand both the parties are well educated. Admittedly, the parties lived together only for three months and after which they have separated on account of irreparable differences. The parties have lived apart for more than eleven years. The parties have appeared before the Mediation and Conciliation Centre of this Court and have settled their dispute amicably. The parties are unwilling to live together as husband and wife. Even after eleven years of separation the parties still want to go for divorce. Considering that the parties had already engaged in mediation before the Mediation Centre of this Court, and had failed to reconcile, no purpose would be served by subjecting the parties to the same process again, especially when they have been living apart for several years, and the marriage has irretrievably broken down. No useful purpose would be served in keeping the petition pending except to prolong their agony."
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