Decree of Divorce can be Passed even before Expiry of waiting period of Six Months [JUDGMENT]

Hindu Marriage Act, 1955 - S. 13(B)(2) - Decree of divorce can be passed even before expiry of waiting period of six months, by waiving the period, if the circumstances so require.

AIR 2011 Utt. 22 : 2011 (2) ALJ 107 : 2011 (1) UC 15

Uttarakhand High Court

Prafulla C. Pant & Sudhanshu Dhulia, JJ.

December 09, 2010

First Appeal No. 80 of 2010

Samardeep Singh v. Randeep Kaur 

For Appellant: Bhupendra Singh 

J U D G M E N T

Prafulla C. Pant, J.

There is delay of nine days in filing the appeal which is sufficiently explained in the affidavit filed with the delay condonation application.

Delay Condonation Application No. 10278 of 2010 is allowed. Delay is condoned.

2. Heard.

3. This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the order dated 28.10.2010, passed by Judge, Family Court, Udham Singh Nagar, in Case No. 281 of 2010, whereby said court has rejected the applications 11-C and 13-C, moved on behalf of the parties, for waiver of waiting period of six months required under sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955.

4. Brief facts of the case are that petitioner/appellant Samardeep Singh is husband and Smt. Randeep Kaur (respondent) is the wife. They got married in the month of January 2009. They filed a joint petition under Section 13-B of the Hindu Marriage Act, 1955, in the year 2010 for divorce by mutual consent. After the application was moved for divorce by the parties, applications 11-C and 13-C were moved by the parties, seeking waiver of the waiting period of six months required un­der sub-section (2) of Section 13-B of the Act. The trial court rejected said applications, as not maintainable, on the ground that the pro­vision contained in sub-section (2) of Section 13-B of the Act, is mandatory.

5. In view of principle of law laid down by various High Courts (in K. Omprakash v. K. Nalini, AIR 1986 Andhra Pradesh 167, Dr. Dhiran Harilal Garasia v. N. Mansu, AIR 1988 Gujarat 159, Dhanjit Vadra v. Beena Vadra, AIR 1990 Delhi 146, Smt. Roopa Reddy v. PrabhakarReddy AIR 1994 Karnataka 12, and Abhay Chauhan v. Rachna Singh, AIR 2006 Delhi 18) that waiting period of six months required under sub-section (2) of Section 13-B of the Hindu Marriage Act. 1955 is direc­tory, and the decree of divorce on joint peti­tion can be passed in the peculiar circumstances of a case, even before expiry of six months period from the date the joint petition was filed. The only requirement is that the circumstances require waiver of the waiting period. In the present case, both husband and wife separately filed applications seeking waiver. Learned counsel for the appellant submitted that there are following circumstances in the present case on the basis of which the waiting period should have been waived:-

i) The parties are living separately,

ii) The marriage was not consummated and the parties started living separately after a pe­riod of fifteen days of marriage,

iii) Negotiations of remarriage of respon­dent (wife) are getting held up on account of delay in the decree of divorce,

iv) Respondent (wife) has already accepted Rs. 4.5 lakhs, as alimony for settlement from the appellant (husband).

6. In the above circumstances, we think that the parties to the matrimony have made out a case of waiver of waiting period required under sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955. The trial court has erred in law in rejecting the applications 11-C and 13-C on the ground that the same are not maintainable, as the provisions contained in sub-section (2) of Section 13-B of the Act, are mandatory in nature.

7. We have already discussed above that various High Courts have opined that the pro­vision contained in sub-section (2) of Section 13-B of Hindu Marriage Act, 1955, is direc­tory in nature, and decree of divorce can be passed even before expiry of waiting period of six months, by waiving the period, if the circumstances so require. We have also men­tioned the circumstances of the present case in which the waiver is sought by the parties. 

8. For the reasons as discussed above, this appeal is allowed. Impugned order dated 28.10.2010, passed by Judge, Family Court, Udham Singh Nagar, in Case No. 281 of 2010, is set aside. Applications 11-C and 13-C moved by the parties before the trial court shall stand allowed. The trial court is directed to proceed with the case filed under Section 13-B of the Hindu Marriage Act, 1955, without unreason­able delay.

Appeal allowed.