Statutory period under Section 13(B)(ii) of the Hindu Marriage Act may be waived under permissible circumstances: Bombay High Court

 on 03 07 2021 on 22 03 Judgment WP 5822 2021.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWrit Petition No. 5822 2021Pritam Vijaykumar DargadAge : 31 years Occu. Service R o. C o. Zensar I.T. Park Kharadi Area Pune.District Pune. .. PetitionerVersusSujata Pritam DargadAge : 27 years Occu. Household R o. C o. Shri Ashok LaddhaJaikwadi Vasahat Gangakhed Taluka Gangakhed Dist. Parbhani. .. Respondent Mr. Rathi Swapnil S. Advocate for Petitioner.Mr. S.S. Gangakhedkar Advocate for Respondent Sole. 1 6 on 03 07 2021 on 22 03 Judgment WP 5822 2021.doc CORAM : SANDEEP K. SHINDE J.RESERVED ON : 29th JUNE 2021.PRONOUNCED ON :3rd JULY 2021. JUDGMENT : 1.Rule.2.Rule made returnable forthwith. Heard fnally with theconsent of parties.3.Solitary question that emanates for consideration in thisPetition is Whether the minimum period of six monthsstipulated under Section 13 B(2) of the Hindu Marriage Act 1955for a motion for passing decree of divorce onthe basis of mutual consent is mandatory or can be relaxed inany exceptional situations 4.The parties to the petition are husband and wife whosemarriage was solemnized on 22nd April 2015. Theirtemperament seldom matched. Resultantly wife had instituted 2 6 on 03 07 2021 on 22 03 Judgment WP 5822 2021.docthe proceedings under Section 125 of the Code of CriminalProcedure 1973 and under Domestic Violence Act 2005. Shewithdrew both the proceedings. Husband had fled a petitionunder Section 9 of Hindu Marriage Act. It was decreed inNovember 2018. The Prosecution launched against thehusband under Section 498 A of the Indian Penal Code 1860 also has been settled. As on today no matrimonial disputesor any proceedings arising therefrom are pending against eachother. On 4th February 2021 parties to this petition institutedthe petition for dissolution of marriage by mutual consent. Inconsideration of the facts of the case an application wasmoved for waiving cooling period for six months. The learnedCivil Judge Senior Division Gangakhed rejected the applicationonly on the ground that eforts were not made for mediation toreunite the parties.5.The learned trial Court relied on the judgment of theHon’ble Apex Court in the case of Amardeep Singh Vs.Harveen Kaur reported in AIR 2017 Supreme Court 4417. The 3 6 on 03 07 2021 on 22 03 Judgment WP 5822 2021.docHon’ble Apex Court in the cited judgment said that whereCourt dealing with the matter if a case is made out to waivestatutory period under Section 13 B(2) it can do so afterconsidering the following:“(i)statutory period of six months specifed S.13 B(2) inaddition to statutory period of one year under S. 13 B(1)of separation of parties is already over before frst motionitselfof the Act S.9 of Family Courts Act to reunite parties have failedand there is no likelihood of success in that direction byany further eforts4 6 on 03 07 2021 on 22 03 Judgment WP 5822 2021.docreproduced hereinabove.6.The parties to the petition have fled an application dulyverifed by them to state that the parties were referred tomediation by this Court vide order dated 6th April 2021.Accordingly both and their respective lawyers had appearedbefore the Mediator and after mediation parties resided to getseparated. The Paragraph No.3 of the application suggeststhat the parties have entered and executed the consent terms which were placed on record of Hindu Marriage Petition No.17 2021.7.In the case of Amardeepthe Hon’ble Apex Courthas held that the period mentioned in Section 13 B(2) ismandatory but directory and therefore in exercise of thediscretion in the facts and circumstances of the case in myopinion there is no possibility of parties resuming cohabitation.8.In consideration of the facts aforesaid statutory period 5 6 on 03 07 2021 on 22 03 Judgment WP 5822 2021.doccontemplated under Section 13 B(2) of the Hindu Marriage Act is waived.9.That for the reasons stated above the impugned orderdated 23rd February 2021 is set aside. Resultantly theapplication below Exhibit 7 in H.M.P. No. 17 2021 pending onthe fle by the learned Civil Judge Senior Division Gangakhed is allowed.10.Rule made absolute in the aforesaid terms. Petition isallowed and disposed of. (SANDEEP K. SHINDE J.)Najeeb.... 6 6 

Summary: Statutory requirement of the husband and wife living separately for one year immediately preceding the presentation of divorce petition may be waived as per the discretion of Court, held, a single-judge bench of Justice Sandeep K Shinde, while adjudicating the matter in Pritam Vijaykumar Dargad v. Sujata Pritam Dargad; [Writ Petition No. 5822 / 2021]. The parties to the petition, are husband and wife, whose marriage was solemnized on 22nd April, 2015. Their temperament seldom matched. Resultantly, wife had instituted the proceedings under Section 125 of the Code of Criminal Procedure, 1973; and under Domestic Violence Act, 2005. She withdrew both the proceedings. Husband had fled a petition under Section 9 of Hindu Marriage Act. It was decreed in November, 2018. The Prosecution launched against the husband under Section 498-A of the Indian Penal Code, 1860, also has been settled. As on today, no matrimonial disputes or any proceedings arising therefrom, are pending against each other. On 4th February, 2021, parties to this petition, instituted the petition for dissolution of marriage by mutual consent. In consideration of the facts of the case, an application was moved for waiving cooling period for six months. The learned Civil Judge, Senior Division, Gangakhed, rejected the application only on the ground that eforts were not made for mediation to reunite the parties. The learned trial Court relied on the judgment of the Hon’ble Apex Court in the case of Amardeep Singh Vs. Harveen Kaur. The Hon’ble Apex Court in the cited judgment said that, where Court dealing with the matter, if a case is made out to waive statutory period under Section 13-B(2), it can do so after considering the following: “(i) statutory period of six months specified S.13-B(2), in addition to statutory period of one year under S. 13-B(1) of separation of parties is already over before first motion itself; (ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA, Rule 3, CPC/S. 23(2) of the Act/ S.9 of Family Courts Act to reunite parties have failed and there is no likelihood of success in that direction by any further efforts; (iii) parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (v) waiting period will only prolong their agony.”