Hindu Marriage Act, 1955 - Section 13B - Divorce by mutual consent - Parties want to remarry after decree of divorce - Having stated so it further fortifies the intention to get separated and the waiting period will only prolong their agony.
HON'BLE SHRI JUSTICE GOUTAM BHADURI
(Pronounced on 09.05.2018)
WP (227) No. 353 of 2018
Smt. Pooja Purohit
W/o Sumer Purohit Aged About 26 Years D/o Sanjay Sharma, Aged About 26 Years,
R/o Near Raipur Convent School Sector , Shivanand Nagar Khamtarai, Raipur Tahsil
& District Raipur Chhattisgarh. --- Petitioner Versus Sumer Purohit S/o
Madanlal Purohit Aged About 33 Years R/o Behind Gurudwara, Station Road,
Lodhipara, Raipur Tahsil & District Raipur Chhattisgarh. --- Respondent
For the Petitioner : Mr. Saurabh Sharma, Advocate.
For
the Respondent : Mr. Neeraj Choubey, Advocate
O R D E R
1. The present petition is against the order dated 02.04.2018 passed
by the Principal Judge, Family Court,Raipur in Civil Suit No.113/2018 (Sumer Purohit Vs. Smt. Pooja Purohit) whereby the application jointly preferred by both the parties for
reduction/relaxation of cooling-off period of six months as provided u/s
13-B(2) of Hindu Marriage Act has been dismissed.
2. Briefly stated
facts of the case are that defendant wife Pooja Purohit was married to
plaintiff Sumer Purohit on 01.02.2017. it
is the case of the parties that after the marriage, they could not go long so
as to continue with the marital relationship and they started living separately
since 04.02.2017. Thereafter, on 05.02.2018 both the parties i.e., husband and
wife had jointly filed a petition u/s 13-B of the Hindu Marriage Act seeking
divorce by mutual consent. After filing of the petition on 06.02.2018, the
learned court below had given the next date of hearing as 26.3.2018 for mediation
and counseling. The efforts by mediation and counseling had failed and
eventually the next date of hearing was given on 07.08.2018. In the meanwhile,
an application has been jointly filed by the husband and wife on 02.04.2018 to
reduce and relax the cooling-off period of six months.
3. The learned court
below has dismissed the said application on the ground that since the parties
have stated that they want to remarry, as such it was felt that the petition to
relax the cooling-off period of six months was filed with an ulterior motive
and in collusion with the parties.
4. Learned counsel
for the petitioner as also learned counsel for the respondent both have
submitted that both the parties are living separately since 04.02.2017 i.e.,
just after 3 days of the marriage and the efforts of conciliation proceedings have
also failed and as such the marriage between the parties has irretrievably
broken down and there is no chance of reunion. They placed reliance in a case
law reported in (2017) 8 SCC 746 –
Amardeep Singh Vs. Harveen Kaur and
submitted that under the circumstances, the learned court below should have
taken note of the fact that both the parties i.e., husband and wife have
jointly requested to relax the cooling-off period of six months and accordingly
the application for relaxation of cooling of period of six months ought to have
been allowed.
5. Perused the documents filed with the petition. The record contains
the application u/s 13-B of the Hindu Marriage Act, 1955. It is been stated
that both the parties cannot go along and after marriage they have only stayed
for 2-3 days together and due to certain difference of opinion, the relation interse
between the parties i.e., husband and wife is not cordial. The petition further
purports that all the Stree Dhan settlement has been arrived between the parties and both of them
do not want to continue with their relations. The record would further show
that during the pendency of the petition, an application was filed to waive the
cooling-off period of six months as contemplated u/s 13(B) of the Hindu Marriage
Act since both the parties i.e., husband and wife are well educated and could not
live with each other, consequently the prayer to waive such period was made.
6. The order sheet
would show that the application for mutual divorce was filed on 05.02.2018,
therefore, the cooling off period of six months as stated in section 13-B would
end on 04.08.2018. The application was filed for waiver of coolingoff period of
six months on 02.04.2018. In this context, the text of section 13-B of Hindu
Marriage Act would be relevant here and quoted below:
“13-B. Divorce by mutual
consent.-- (1) Subject to the provisions of this Act a petition for dissolution
of marriage by a decree of divorce may be presented to the district court by
both the parties to a marriage together, whether such marriage was solemnised
before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on
the ground that they have been living separately for a period of one year or
more, that they have not been able to live together and that they have mutually
agreed that the marriage should be dissolved.
(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 period is not withdrawn
in the meantime, the Court shall, on being satisfied, after hearing the parties
and after making such inquiry as it thinks fit, that a marriage has been
solemnised and that the averments in the petition are true, pass a decree of divorce
declaring the marriage to be dissolved with effect from the date of the decree.”
7. The Supreme Court in a case law reported in (2017)
7 SCC page 746 – Amardeep Singh Vs. Harveen Kaur has
held that in the year 1976, the concept of divorce by mutual consent was
introduced and however, section 13-B(2) contains a bar to divorce being granted
before six months of time elapsing after filing of the divorce petition by
mutual consent. The said period was laid down to enable the parties to have a
rethink so that the court grant divorce by mutual consent only if there is no
chance for reconciliation. The Supreme Court has further laid down the
following principles at para 19 :
“19. Applying the above to the present situation,
we are of the view that where the court dealing with a matter is satisfied that
a case is made out to waive the statutory period under Section 13- B(2), it can
do so after considering the following:
(i) the statutory period of six months specified
in Section 13-B(2), in addition to the statutory period of one year under
Section 13-B(1) of separation of parties is already over before the first motion
itself;
(ii) all efforts for mediation/conciliation including efforts in terms
of Order 32-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts
Act to reunite the parties have failed and there is no likelihood of success in
that direction by any further efforts;
(iii) the parties have genuinely settled
their differences including alimony, custody of child or any other pending
issues between the parties;
(iv) the waiting period will only prolong their
agony.”
8. Applying the aforesaid principles to the present case, the facts
would suggest that immediately after the marriage took place on 01.02.2017,
both the parties i.e., the husband and wife have jointly applied for divorce by
stating that they are living separately since 04.02.2017 and the application
for mutual divorce was filed on 05.02.2018. The order sheets also records the
fact that the conciliation proceeding to reunite the parties has failed on
26.03.2018 and after filing of application on 05.02.2018, another application
to waive the period of six months was filed on 02.04.2018 wherein the parties
had stated that they could not go along with each other and after the divorce
they want to remarry. Therefore, by all necessary implications, it goes to show
that even after rethinking, the parties have come to firm opinion and arrived at
a settlement that they cannot stay together and want the divorce. As a natural
consequence it can be said to be a fair submission on the part of both the
petitioner and respondent that they want to remarry after decree of divorce.
Having stated so it further fortifies the intention to get separated and the
waiting period will only prolong their agony.
9. Under the circumstances the
order dated 02.04.2018 passed by the Family Court Raipur is set aside. The
application jointly filed by the petitioner and the respondent to waive the
colling-off period of six months is allowed. The parties shall appear before
the family court on 18.05.2018 to record their statements before the Court
below and thereafter the Court below shall adjudicate the same in accordance
with law.
10. In the result,
the writ petition is allowed.