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2004 DIGILAW 287 (ORI)

Sri Debmeet Patro v. Family Court, Cuttack

2004-06-28

A.K.PATNAIK, M.M.DAS

body2004
ORDER 28.6.2004 — Heard Ms. S. L. Patnaik, learned counsel for the petitioner and Mr. S. K. Das, learned counsel for the opp. party No. 2. The petitioner and the opp. party No. 2 are married to each other and a certificate of marriage in proof of such marriage between the petitioner and opp. party No. 2 was issued by the Special Marriage Officer, Khurda, Bhubaneswar under Section 13 of the Special Marriage Act, 1954. Since the marriage between the petitioner and opp. party No. 2 broke down, the petitioner and opp. party No. 2 filed an application for mutual divorce and also filed an application under Section 28(2) of the Special Marriage Act 1954 for waiving the statutory period of six months for which the parties have to wait before a decree for mutual divorce is passed. The said application for waiving the statutory period of six months was, however, rejected by order dated 29.4.2004 passed by the Judge, Family Court, Cuttack in Civil Proceeding No. 241 of 2004. Aggrieved by the said order dated 29.4.2004, the petitioner has filed this writ petition under Articles 226 and 227 of the Constitution. Mr. Patnaik, learned counsel for the petitioner and Mr. Das, learned counsel for the opp. party No.2 submitted that all ef¬forts for reconciliation between the petitioner and the opp party No.2 have failed and the marriage has been broken down irretriev¬ably and there is absolutely no chance for the petitioner and the opp. party No. 2 for being reunited. The opp. party No. 2 has further stated in an affidavit filed in this Court that her marriage to another person is being negotiated by her parents. The petitioner states that he wants to go abroad, but he is not in a position to go unless the marriage between the petitioner and opp. party No. 2 is dissolved and Civil Proceeding No. 241 of 2004 is completed. Ms. Patnaik, learned counsel for the petitioner and Mr. Das, learned counsel for the opp. The petitioner states that he wants to go abroad, but he is not in a position to go unless the marriage between the petitioner and opp. party No. 2 is dissolved and Civil Proceeding No. 241 of 2004 is completed. Ms. Patnaik, learned counsel for the petitioner and Mr. Das, learned counsel for the opp. party No. 2 also relied on a deci¬sion of this Court in Mihir Narayan Mohanty-versus-Sadaylaxmi Patnaik, 1991 (II) OLR 509, wherein a learned single Judge of this Court while interpreting the provisions in Section 13-B of the Hindu Marriage Act 1955 has held that although the said provision requires that the Court should normally wait for six months from the date of filing of application before passing a decree for divorce, there is no prohibition for the Court in a just case to pass a decree for divorce before the said period of six months. They also relied on a judgment of the Division Bench of Karnataka High Court in Smt. Roopa Reddy v. Pravakar Reddy, AIR 1994 Karnataka 12, in which, the provision in Section 13-B (2) of the Hindu Marriage Act for the Court to wait for a period of six months from the date of filing of an application for mutual divorce before passing a decree of divorce has been con¬strued to be directory not mandatory. Considering the aforesaid decision of this Court as well as the Karnataka High Court and considering the facts that the opp. party No. 2 is wanting to remarry to someone else and the peti¬tioner wants to leave the country for a job abroad, we are in¬clined to direct the Judge, Family Court, Cuttack to consider the application of the petitioner and pass orders for mutual divorce without waiting for the statutory period of six months as provid¬ed in Sub-section (2) of Section 28 of the Special Marriage Act, 1957. We, therefore, set aside the order dated 29.4.2004 passed by the Judge, Family Court, Cuttack in Civil Proceeding No. 241 of 2004 and direct that the petitioner and the opp. party No. 2 will appear before the Judge, Family Court, Cuttack on 5th July 2004 who will thereafter pass fresh orders in accordance with law. Urgent certified copy of this order be supplied on proper application. Application disposed of.