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2015 DIGILAW 686 (MP)

Shirish Pathak v. Ridhima

2015-07-02

PRAKASH SHRIVASTAVA

body2015
ORDER 1. Heard finally with consent. 2. This writ petition under Article 227 of the Constitution of India is directed against the order of Family Court dated 16.5.2015, whereby the joint application of the parties for reducing six month’s period under section 13B(2) of Hindu Marriage Act has been rejected. 3. In brief, the parties have filed the divorce petition seeking divorce by mutual consent under section 13B of Act before the Family Court. Alongwith the petition for divorce they had also filed an application for reducing the six month’s waiting period. The Family Court by the impugned order has rejected the said application. 4. Learned counsel for parties have pointed out that after the marriage the parties had lived together in America (USA) and on account of differences they had filed an application for dissolution of marriage before the Superior Court in Judicial District of Hartford at Hartford, State of Connecticut vide judgment dated 23.3.2015 had passed the divorce judgment for dissolution of marriage and as per the applicable laws at United State of America a dissolution of marriage agreement was also executed by Superior Court on 23.3.2015. Since the parties have roots in India and their marriage was solemnized at Indore therefore, they had filed an application seeking divorce by mutual consent under section 13-B of Act. The prayer of the parties for reducing six month’s waiting period as prescribed under section 13B(2) of Act has been rejected by the Family Court by the impugned order stating that the Court is not competent to reduce the period. 5. Division Bench of this Court in the matter of Dinesh Kumar Shukla v. Smt. Neeta, reported in 2005(2) JLJ 298 =2005(1)MPLJ 362 after considering several judgments on the point has already held that provisions of section 13B(2) of Act are directory in nature and not mandatory and the waiting period can be brought down from six months. This Court again in the matter of Anamika Shrivastava v. Vivek Shrivastava, reported in 2008(I)MPWN11= 2007(4) MPLJ 494 has held that period of six months prescribed under section 13B(2) has held that period of six months prescribed under section 13B(2) of Act is directory in nature and application can be decided without awaiting for the period of six months to be over. Division Bench of this Court in the matter of Vartika w/o Ankit Jain v. Ankit s/o Hastimal Jain, reported in 2012(III) MPWN120= 2012(4) MPLJ 341 considering the pleasding of parties that they are not living husband and wife since last one year has granted the decree of divorce. This position has been reiterated in the judgment of this Court in the matter of Deepak(Dr.) v. Smt. Tanuja, reported in 2003(2) JLJ 121 , Madras High Court also in the matter of K. Thiruvengadam and another v. Nil, reported in AIR 2008 Madras 76 has held that facts of each and every case have to be considered and it is always open to the Court to decide about the waiver of the period of six months. 6. Thus, in view of the aforesaid judgments it is clear that provisions contained in section 13B(2) of Act are directory in nature and in a given case the requirement of six months waiting can be waived. 7. In the present case the superior Court of Connecticut vide judgement dated 23.3.2015 has already dissolved the marriage and agreement dated 23.3.2015 in this regard in terms of the laws applicable in USA has been signed by the parties. Thereafter the joint application for divorce by mutual consent has been filed by the parties at Indore, since they have roots in India and their marriage was solemnized at Indore. 8. It is undisputed that parties are living separately and the judgment of divorce by the Court of Connecticut has become final. 9. In these circumstances, a case is made out for reducing the six month’s period as prescribed under section 13B(2) of Act. Hence the impugned order is set aside by directing the Family Court to take an appropriate decision on the joint application of the parties filed under section 13B(2) of Act without requiring them to wait for a period of six months in terms of section 13B(2) of Act. 10. Writ petition is accordingly disposed of.