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Madhya Pradesh High Court · body

2016 DIGILAW 1090 (MP)

Nagendra Sikarwar v. Girja Dhakre

2016-11-30

S.K.AWASTHI, SHEEL NAGU

body2016
ORDER 1. The instant first appeal under section 19 of the Family Courts Act, 1984 assails the interlocutory order dated 22.10.2016 whereby while admitting petition under section 13B of Hindu Marriage Act ( in short “ HMA”) seeking divorce by mutual consent preferred jointly by rival parties, the Family Court has rejected the prayer for waving the cooling off period of six months by relying upon the decision of the apex Court in the case of Anil Kumar Jain v. Maya Jain [2010(1) JLJ 364= (2009)10 SCC 415 ]. 2. Learned counsel for the appellant relying upon the Division Bench decision of this Court in the case of Preety v. Arun Kumar [ 2016(3) JLJ 106 =(2016) 4 MPLJ 79], submits that when marriage breaks down irretrievably then the appellate Court by exercising discretionary power to do complete justice can very well waive the cooling off period of six months and grant divorce by mutual consent without waiting for six months to expire. 3. True it is that the Coordinate Bench of this Court has taken a view which favours the case of the petitioner but the said view appears to be contrary to the law laid down by the apex Court in the case of Anil Kumar Jain (supra), which has subsequently been followed in case of Soni Kumari v. Deepak Kumar [(2015) SCC Online SC 1503], categorically holding that neither the Family Court nor the High Court even has power to waive the cooling off period of six months statutorily provided under sub-clause (2) of section 13B of HMA in mandatory terms. The apex Court can very well exercise its extraordinary power under Article 142 of the Constitution for doing complete justice, but no such power is vested in the High Court even while exercising appellate jurisdiction. 4. At this stage, it would be profitable to reproduce below para 29 of the above referred decision of Anil Kumar Jain (supra). “29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under section 13 or 13B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under section 13 or 13B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in section 13B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in sections 13 and 13B of the Hindu Marriage Act, 1955.” 5. Accordingly, the decision of Co-ordinate Bench of this Court in Preety (supra), being in variance to the law laid down by the apex Court in cases referred to supra, has been rendered per in curium and thus is of no avail to the appellant. 6. Pertinently, the appellate jurisdiction exercised by the High Court under section 19 of the Family Courts Act, 1984 is available against final order. Section 19 excludes interlocutory orders from being subjected to appeal. The impugned order herein is interlocutory in nature. More so, the sweep and extent of jurisdiction of an appellate Court cannot travel beyond the legal periphery prescribed by law (section 13B). The appellate Court can very well interfere with the judgment and decree of the Family Court but while doing so is bound by the same constraints of substantive and procedural law which binds the trial Court. Thus, the nature and extent of relief granted by the Appellate Court (High Court) under section 19 cannot be in variance to what could have been granted by the Family Court under section 13B of the Hindu Marriage Act. 7. Thus, the nature and extent of relief granted by the Appellate Court (High Court) under section 19 cannot be in variance to what could have been granted by the Family Court under section 13B of the Hindu Marriage Act. 7. The power of condoning the cooling period of six months may be exercised in certain circumstances by the apex Court in its extra-ordinary powers under Article 142 of the Constitution of India to do complete justice but not by the High Court or trial Court. 8. In view of above, no fault can be found with the impugned order. 9. Appeal fails and is hereby dismissed.