Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 1060 (MP)

Pooja v. Tarun

2017-10-06

VIVEK RUSIA

body2017
ORDER 1. Petitioner has filed the present petition being aggrieved by the order dated 3.8.2017 by which the learned Family Court, Indore has refused to condone the cooling of period of six months for grant of divorce under section 13B of Hindu Marriage Act, 1955. The marriage between the petitioner and respondent was solemnized on 3.1.2002 and after living for eight years they started living separately because the dispute arose between them. They jointly filed an application for divorce by way of mutual consent under section 13B of Hindu Marriage Act, 1955. After the first motion they filed an application dated 24.7.2017 seeking waiver of six months cooling off period. By order dated 3.8.2017 learned Family Court has rejected the application on the ground that statutory cooling off period cannot be waived by the Family Court, hence, the present petition is filed before this Court. 2. Now the apex Court in the case of Amardeep Singh v. Harveen Kaur passed in Civil Appeal No.11158/2017 vide judgment dated 12.9.2017, reported in 2017(III) MPWN 69, has held that the period mentioned in section 13B(2) of the Hindu Marriage Act, 1955 is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. 3. The apex Court has further held that the Family Court can reduce the six months period if certain conditions are fulfilled. Para 18 to Para 23 of the aforesaid judgment are reproduced below :- 18. 3. The apex Court has further held that the Family Court can reduce the six months period if certain conditions are fulfilled. Para 18 to Para 23 of the aforesaid judgment are reproduced below :- 18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under section 13B(2), it can do so after considering the following : i) the statutory period of six months specified in section 13B(2), in addition to the statutory period of one year under section 13B(1) of separation of parties is already over before the first motion itself; ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA rule 3 CPC/section 23(2) of the Act/section 9 of the family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony. 19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court. 21. Since we are of the view that the period mentioned in section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. 22. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice. 23. The parties are now at liberty to move the concerned Court for fresh consideration in the light of this order. The appeal is disposed of accordingly. 4. 23. The parties are now at liberty to move the concerned Court for fresh consideration in the light of this order. The appeal is disposed of accordingly. 4. In the light of above judgment of apex Court the matter is remitted back to the family Court, Indore to consider afresh the application dated 24.7.2017 and decide accordingly. 5. Accordingly, the petition is disposed of.