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2014 DIGILAW 476 (ALL)

ASHOK VERMA v. POONAM YADAV

2014-02-12

PANKAJ MITHAL

body2014
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard learned counsel for the petitioner. 2. Petitioner has filed this petition for quashing the order dated 10.12.2013 passed by the Principal Judge, Family Court Ghaziabad in Original Suit No. 2 of 2013 (Smt. Poonam v. Ashok Verma) with a further prayer to waive the statutory period of six months provided under Section 13-B (2) of the Hindu Marriage Act, 1955 and to direct the Court Court to pass a decree of divorce immediately. 3. It appears that the parties have applied for divorce by mutual consent to the family Court on 6.12.2013. In support of the petition they also filed a joint affidavit agreeing for divorce. 4. In the said suit petitioner on 20.12.2013 moved an application to pass a decree of divorce without waiting for the expiry of statutory period of six months. The said application has been rejected by the impugned order dated 10.12.2013. 5. Section 13 B(2) of the Hindu Marriage Act provides that on the motion of both the parties for divorce by mutual consent, a decree of divorce declaring the marriage to be dissolved can be passed not earlier than six months of the date of presentation of the petition, if it is not withdrawn in the meantime.Therefore, no order of divorce by mutual consent can be passed before expiry of six months of the presentation of the divorce petition under Section 13 B of the Act. 6. The purpose and object of providing statutory cooling period of six months is to allow the parties an additional opportunity to reflect, recontemplate and to come to a definite conclusion in a cool manner as regards to their decision to have divorce which is a serious matter affecting the life of both of them. On second thought, in the meantime, the consent given for divorce can be withdrawn by either of the parties,if necessary. 7. Learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court in the case of Devendra Singh Narula v. Meenakshi Nangia, (2012)8 SCC 580 , wherein the Supreme Court by converting the suit between the husband and wife filed Section 12 of the Act into that of divorce by mutual consent under Section 13-B of the Act by invoking the power under Article 142 of the Constitution of India directed for divorce by mutual consent. 8. 8. The other decision on the subject is of Harpreet Singh Popli v. Manmeet Kaur, 2009 (Law Suits) SC 1952. In the said case several proceedings between the parties were pending in the various Courts and the Supreme Court in the facts and circumstances of the case withdrew the petition which was pending before the District Judge and after waiving the requirement of six months period specified under Section 13B (2) of the Act granted the decree of divorce by mutual consent. 9. The aforesaid decisions have been passed by the Apex Court invoking the power under Article 142 of the Constitution of India. 10. In Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 , their Lordships of the Supreme Court clearly laid down that neither the Civil Courts nor even the High Courts can pass orders for divorce before the periods prescribed under the Act or on the grounds not provided therein. It is only the Supreme Court in exercise of extraordinary powers under Article 142 of the Constitution of India in order to do complete justice can convert proceedings under Section 13 of the Act into one under Section 13-B of the Act and pass a decree of mutual divorce without waiting for the statutory period of six months and none of the other Courts can exercise such powers. 11. I myself in a case of Vivek Kumar and another v. State of U.P., AIR 2013 All 58 , has dismissed a similar petition holding that a direction for immediate disposal of a divorce petition by mutual consent before expiry of the statutory period cannot be passed by this Court. 12. In view of the aforesaid facts and circumstances, there is no illegality in the order impugned and no direction can be given to pass a decree of divorce waiving the statutory period. 13. The petition is accordingly dismissed with the direction to the Court below to fix a date immediately on the expiry of the period of six months from the presentation of the petition and to proceed to decide the same thereafter forthwith in accordance with law.