1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No. 21/2009 Lata Purshottam Rathi and another vs. Hon'ble Civil Judge, Sr. Dn., Wardha. ----------- ------------------------------------------------------------------------------------------ Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. --------------------------------------------------------------------------------------------------------- CORAM : A.P.Lavande & Prasanna B. Varale, JJ DATE OF RESERVING THE ORDER : 09.02.2009 DATE OF PRONOUNCEMENT OF ORDER: 24.02.2009 Heard Shri A. Shelat, learned counsel for the appellants. 2. By this letters patent appeal, the appellants seek reconsideration of the Judgment delivered by the Division Bench of this Court in Civil Reference No. 2/2007 (Principal Judge, Family Court Nagpur vs. Nil) reported in 2008 (5) Mh. L.J., 22. 3. The appellants got married on 2.6.1986 as per the hindu rites and out of the wedlock they have a son viz. Rahul. On account of differences, the appellants have been residing separately since the year 2000. On 23.7.2008, the appellants filed Divorce Petition No. 164/ 2008 before the Civil Judge, Sr. Dn., Wardha seeking divorce by mutual consent in terms of Section 13-B of the Hindu Marriage Act, 1955 (“The Act” for short). 2` 4. On 30.7.2008 i.e. even before expiry of six months, application was filed by the applicants for preponing the date of hearing of the petition. The learned Civil Judge by order dated 30.7.2008 dismissed the application relying upon the above referred Judgment delivered by the Division Bench. Aggrieved by the said order, the appellants preferred Writ Petition No. 4119/08 before the learned Single Judge who by order dated 26.9.2008 dismissed the petition holding that the Division Bench Judgment was binding on him and he saw no reason to take a different view of the matter. Being aggrieved, the appellants are before this court. 5. Mr. Shelat, learned counsel appearing for the appellants submitted that the Judgment delivered by the Division Bench requires reconsideration inasmuch as the view taken by the Division Bench is not correct since no purpose would be served by asking the couple to wait for six months to get divorce by mutual consent since same would cause serious hardship not only to the appellants but to all the couples who are in similar situation. According to Mr. Shelat, the marriage between the appellants 1 and 2 has been irretrievably broken down. Therefore, it would be futile to wait for six months for grant of divorce. The learned counsel submitted that several High Courts had taken the view that the period of six months under Section 13(B)(2) is not mandatory but 3` only directory. The learned counsel further submitted that the Apex Court has held that if the marriage is irretrievably broken down, the marriage deserves to be dissolved by granting divorce. In support of his submission, Mr. Shelat relied upon the following Judgments. i) Sonali w/o Manishkumar Chandak & another .vs. Nil. 2007(5) Mh. L.J., 615. ii) Smt. Subhasree Datta and another vs.Nil. AIR 2008 Calcutta, 144. iii) K. Thiruvengadam and another vs. Nil. AIR 2008 Madras 76 iv) Vijay Kumar vs. Surinder Kaur @ Sunita (2008) DMC 605; v) Dr. Dhiran Harilal garasia vs.N. Mansu AIR 1988 Gujrat, 159. vi) K. Omprakash vs. K. Nalini. AIR 1986 A.P. 167. vii) In Re: Grandhi Venkata Chitti Abbai & another. AIR 1999 A.P. , 91. 4` viii) Smt. Roopa Reddy vs. Prabhakar Reddy AIR 1994 Karnataka 12. ix) Sanghamitra Ghosh vs. Kajal Kumar Ghosh 2007 DMC, 105 (S.C.). 6. Having heard the learned counsel for the appellants and having perused the Judgments relied upon on behalf of the appellants as well as the Judgment delivered by the Division Bench of this Court in Reference No. 2/2007, we are of the considered opinion that no case has been made out by the appellants for interference by this court. 7. The Division Bench of this court in the above referred Judgment has considered the Judgments delivered by the learned Single Judges of this Court as well as the Judgments of several other High Courts and has come to the conclusion that the waiting period of six months is mandatory and can not be waived by the court of competent jurisdiction. In our considered opinion, the reasons given by the Division Bench are weighty and requires no reconsideration. We are, therefore, unable to place reliance upon the several Judgments of the other High Courts which have taken a contrary view. In so far as the Judgments of the Apex Court relied upon by Mr. Shelat are concerned, the same do not advance the case 5` of the appellants. In those cases, the Apex Court has granted divorce on the ground of irretrievable brake down of marriage by exercising jurisdiction under Article 142 of the Constitution of India. Indisputably, this court does not have similar jurisdiction and, therefore, the said Judgments do not support the appellants. 8. In view of the above, we find no merit in the present appeal. Moreover, the period of six months has already expired. This is an additional ground for dismissing the appeal. 9. In view of the above, the appeal stands dismissed summarily. JUDGE JUDGE patle 6`