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2015 DIGILAW 1496 (ALL)

Sushil Kumar v. Family Court

2015-06-05

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. Heard learned counsel for the petitioner. 2. This petition has been filed seeking amongst the following relief: - “(i) Issue a writ or direction to the respondent no. 1 to decide the Case No. 215 of 2015 under Section 13-B Hindu Marriage Act (Simran Vs Sushil) pending in the court of Family Judge, Moradabad, expeditiously within the stipulated period fixed by this Hon’ble Court.” 3. Learned counsel for the petitioner states that this relief is being sought in view of the averments contained in paragraph 11 of the writ petition which is quoted herein below: - "That it came in the knowledge of the petitioner from some sources that the respondent no. 2 is going to marry therefore the matter is very urgent for kind consideration of this Hon'ble Court." 4. Admittedly, the application which is pending consideration has been filed under Section 13-B of the Hindu Marriage Act. The relevant provision of the law under which the joint application for divorce by mutual consent has been filed reads as follows: - "13-B. Divorce by mutual consent. (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree." 5. From the above cited provision it is clear that no orders can be passed for divorce by mutual consent before expiry of six months from the date of presentation of the petition itself. 6. Admittedly, the petition for divorce by mutual consent was filed on 28.08.2015. Therefore, in view of the statutory provision the next date fixed is 28.02.2016, on which date the period of six months shall come to an end. 7. Under the circumstances, no direction can be issued for disposal of the application for divorce by mutual consent prior to the date fixed. In such view of the matter, in my considered opinion no direction is required to be issued. The writ petition is misconceived and is therefore, dismissed at this stage.