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2016 DIGILAW 1312 (RAJ)

Rekha Prajpat W/o Shri Manoj v. Manoj S/o Shri Rameshwarlal

2016-09-08

NAVIN SINHA, PANKAJ BHANDARI

body2016
ORDER : 1. With the consent of learned counsel for the parties, the appeal is taken up for final disposal at this stage itself. 2. The appellant wife filed an application for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (herein after referred to as 'the Act') on grounds of cruelty before the Family Judge, Merta registered as Civil Case (Matrimonial petition) No. 423/14. The learned Family Judge by order dated 08.12.2015 held that cruelty had not been established and rejected the petition. 3. We have heard learned counsel for the parties. 4. The respondent in his written statement denied allegations of cruelty but simultaneously stated that he had no objection if decree for divorce was granted as they were incompatible. The appellant had pleaded that they were both young and should be given the opportunity to start life afresh as per their wishes. The age of the appellant and respondent as on 21.4.2015 was 22 and 24 years respectively. On the aforesaid date they filed a joint petition that they were mutually agreeable for divorce and that she had been paid one time maintenance and that they had no further claims against each other. If the appellant and respondent desired to part ways amicably without rancour and start a new life, the Family Judge was expected to display more sensitivity. It was not yet another litigation with regard to property, service or a money claim or suit for specific performance. The present was a matter concerning two young human lives. Unfortunately they found themselves to be incompatible. Instead of bickering against each other wasting precious years of their youth they took a conscious decision of their own free volition without undue influence, fear or coercion to part ways respectfully. No social offence was committed by either of them because they ultimately found out that they were incompatible as human beings. 5. The Family Judge was expected to have a realistic approach to life and the law. Little did the Family Judge realise that a pedantic literal approach in the law would prove counter productive for both the parties and leave the law as a dead letter serving no useful purpose. What justice will mean in a case will depend on the facts of each case. The law has to be infused with life and not by interpreting it in a stultified manner without holistic appreciation. What justice will mean in a case will depend on the facts of each case. The law has to be infused with life and not by interpreting it in a stultified manner without holistic appreciation. A pedantic approach on the part of Family Judge has not only generated unwarranted litigation burdening the court unnecessarily but has also resulted in what can well be described as injustice to the parties due to lack of application of proper judicial acumen and discretion to advance justice. 6. The suit was filed on 08.12.2014. The reply of the respondent was filed on 18.05.2015 taking the stand that he had no objection to the grant of divorce. On 21.5.2014 a joint petition on affidavit was filed that in accordance with the social custom of the parties they had mutually decided to agree for divorce. It was not strictly labelled as being under Section 13-B of the Act but yet the intention of the parties was clear and the Family Judge could have acted upon the same. Instead of completely ignoring the document the Family Judge could have at best asked them to institute an application properly under Section 13-B of the Act. The statutory period under Section 13-B of the Act for divorce by mutual consent is six months. The statutory period of six months reckoned from 21.5.2014 had expired on 20.11.2015 before the impugned order dated 08.12.2015 came to be passed. The parties were also ad-idem with regard to requirement under Section 13-B that they had not been living together for more than past one year from the date of presentation of the petition. 7. Learned counsel for the respondent submits that he has no objection if the order is set aside and divorce is allowed. 8. Appropriately the impugned order could have been set aside and the matter remanded to treat the joint affidavit of the parties dated 21.05.2014 as an application for mutual divorce under Section 13-B of the Act and to pass fresh appropriate orders accordingly. But that would only result in multiplicity of proceedings and cause further anguish and harassment to the parties in the peculiar facts and circumstances of the present case. Since the respondent has no objection to the appeal being allowed, we set aside the order under appeal dated 08.12.2015. But that would only result in multiplicity of proceedings and cause further anguish and harassment to the parties in the peculiar facts and circumstances of the present case. Since the respondent has no objection to the appeal being allowed, we set aside the order under appeal dated 08.12.2015. This cannot be treated as an affirmation of the grounds for divorce which essentially partakes the character of a 'no-fault divorce' between the parties. Let a copy of this order be sent to the Director of State Judicial Academy. Appeal allowed.