1 fca-114.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 114 OF 2010 AND FAMILY COURT APPEAL NO. 118 OF 2010 Hina Manish Gaglani. ... Appellant. V/s. Manish Haresh Gaglani. ... Respondent. Shri Bhavesh Parmar i/b. Ms.S.A.Mailgir for the appellant. Shri Saeed Akhtar for the respondent. CORAM : V.C.DAGA AND R.G.KETKAR, JJ. DATED : 17th February 2011. P.C. : 1. This appeal is directed against the judgment and order dated 14th June, 2010 passed by the Family Court No.6, Mumbai dissolving the marriage between the parties solemnized on 8th July, 2003 at Mumbai by mutual consent as per the consent terms (Exh.61) under section 13-B of the Hindu Marriage Act,1955 (“Act” for short) and rejected the claim for maintenance and articles preferred by the appellant- wife. THE FACTUAL MATRIX 2. The factual matrix reveals that the appellant and respondent got married on 8th July, 2003 at Mumbai. The 2 fca-114.10 matrimonial discord between the parties resulted in filing petition for divorce under section 13(1)(ia) of the Act, which came to be registered as Petition No.A-1560/2010. The appellant-wife also filed petition for maintenance against the respondent which came to be registered as Petition No.C-175/2010. It appears that during the pendency of the petition certain interim proceedings were taken, the details of which are not necessary for the view taken herein. Suffice it so say that during the pendency of the aforesaid petitions, consent terms at Ex.61 were filed before the Family Court and request was made to the Court to dissolve the marriage by consent of parties. The Family Court No.6 on 14th June, 2010 passed impugned judgment and order against the appellant-wife and in favour of respondent-husband whereby and whereunder the marriage was dissolved by decree of divorce by mutual consent. At the same time, claim for maintenance and permanent alimony came to be rejected. 3. Being aggrieved by the aforesaid judgment and order. the appellant-wife has preferred this appeal contending that the Family Court committed serious error of law in passing a decree for divorce by simplicitor relying on consent terms (Exh.61) without complying with the provisions of section 13-B of the Act with the mandatory requirement of waiting for a period of six months after filing of a petition by mutual consent of the parties. That the impugned judgment and order is in breach of the law laid down by the Division Bench of this Court in the case of Principal Judge, Family Court, Nagpur v. Nil, AIR 3 fca-114.10 2009 Bombay 12. It is further contended that not only the impugned judgment is not only in breach of the law laid down by this Court but is also contrary to the settled law of the Hon’ble Supreme Court in Anil Kumar Jain v. Maya Jain, 2009 AIR SCW 5899. 4. On being noticed, the respondent- husband appeared and opposed the above appeal. During the pendency of the appeal, attempts were made to settle the matter between the parties. Serious attempts were also made by the earlier Bench presided over by Justice Marlapalle and an opportunity was given to the parties to explore possibility of amicable settlement. When the matter was heard by us, we also interacted with the parties and tried to settle the matter but our efforts could not yield any fruits. With the result, both parties urged that the appeal may be disposed of. That is how, appeal was heard finally dispensing with original records since all relevant documents were on record and only the question of law was required to be considered. RIVAL SUBMISSIONS 5. Learned counsel appearing for the appellant- wife urged that the impugned judgment and order is clearly in breach of the law laid down by this Court in the case of Principal Judge, Family Court, Nagpur v. Nil (supra) and by Supreme Court in the case of Anil Kumar Jain v. Maya Jain (supra). 4 fca-114.10 6. Learned counsel appearing for the respondent- husband tried to support the impugned judgment and order contending that it was a consent order as such no interference is called for, though, technically, there should have been an amendment to the original petition converting it to a petition for divorce by mutual consent under section 13-B of the Act. CONSIDERATION 7. Having heard rival parties, the law laid down by this Court in the case of Principal Judge, Family Court, Nagpur v. Nil (supra) is absolutely clear; wherein the Division Bench of this Court was required to consider the following questions: “1) Whether the statutory waiting period of six months under Section 13B(2) of Hindu Marriage Act can be waived by the Trial Court or not may kindly be decided. 2) Necessary guidance or directions may kindly be issued as prayed 8. The Division Bench after narrating the factual backdrop and after threadbare discussion on the question of law answered the reference in para-14 of the judgment reproduced hereinbelow: “24. For the reasons aforerecorded, we have no hesitation in answering the question referred to this Court by the learned Principal Judge, Family Court, Nagpur as under: 5 fca-114.10 i) The waiting period of six months (i.e. from the institution of the first motion to the moving of the second motion) is mandatory and cannot be waived by the court of competent jurisdiction. It is a period during which the parties are expected to ponder and seriously consider their decision to sever the matrimonial ties. Thus, the second motion should be entertained and decided in accordance with the provisions of Section 13B(2) by the court upon due application of mind and recording the satisfaction as contemplated under that provision. ii) It is desirable that each case is decided by the court of competent jurisdiction with reference to the facts and circumstances of such case and in accordance with law. No further guideline is called for. “ 9. The Apex Court in the case of Anil Kumar Jain v. Maya (supra) was pleased to observe as under: “17. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable break down of marriage is not one of the grounds indicated whether under Section 13 or 13-B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable break down of marriage is not available even to the High Courts which 6 fca-114.10 do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955.” 10. In the teeth of the aforesaid settled law we have no option but to set aside the impugned judgment and order since no amendment was carried out to the original petition seeking divorce converting it into a petition for divorce by mutual consent under section 13-B of the Act and for not granting a period of six months to the parties to ponder and seriously consider their decision to serve the matrimonial ties. 11. At this stage, learned counsel appearing for the appellant-wife submits that if the respondent-husband is prepared to pay Rs.4 lakh by way of permanent alimony, in that event, she will withdraw this appeal. 12. While reacting to this submission, learned counsel appearing for the respondent after taking instruction from the respondent- husband, who is present in the Court, has filed undertaking before this Court stating therein that he is ready and will to pay in full and final settlement Rs.4 lakh by way of permanent alimony to the appellant in the following manner: 7 fca-114.10 a) A sum of Rs.80,000/- to be paid on or before 17th March, 2011. b) A sum of Rs.80,000/- to be paid on or before 16th April, 2011. c) A sum of Rs.80,000/- to be paid on or before 17th May, 2011. d) A sum of Rs.80,000/- to be paid on or before 17th June, 2011. e) A sum of Rs.80,000/- to be paid on or before 16th July, 2011. 13. The said undertaking on oath is taken on record. 14. The learned counsel appearing for the appellant expressed apprehension if the undertaking is breached. Then in that event, the appellant would be left in lurch. In order to obviate this apprehension, conditional judgment is being passed making it clear that in the event the compliance of the undertaking, the appeal shall be treated as dismissed as withdrawn with no order as to costs. However, in the event of breach of any of the term of the undertaking, reserving right to initiate appropriate proceedings as may be permissible in law, the impugned judgment and order shall be treated set aside and the appeal shall be treated as allowed and that the proceedings stand remitted to the Family Court treating both Petition No.A-1560/2004 and Petition No.C-175/2004 as restored to the file of the Family Court No.6 for consideration on merits keeping all rival contentions open with direction to decide the same with expeditious despatch. This conditional order is being passed to secure interest of both parties and to see that the matter stands settled by mutual consent. 8 fca-114.10 15. Needless to mention that the amount to be paid as per the undertaking shall be paid by bankers cheque drawn in favour of Ms.Hina Mulraj Sheth, since the appellant is maintaining her bank account in the said title. Appeal stands disposed of in terms of this order. No order as to costs. (R.G.KETKAR, J.) (V.C.DAGA, J.)