Research › Search › Judgment

Bombay High Court · body

2017 DIGILAW 698 (BOM)

Nitin s/o Sudhakar Zaparde v. Nil

2017-04-07

R.K.DESHPANDE

body2017
JUDGMENT : 1. Rule. Heard finally by consent of the learned counsel appearing for the petitioners. 2. This petition challenges the order dated 1-3-2017 passed by the Family Court, Akola, below Exhibit 9 in Family Petition No.77 of 2016, rejecting the application for waiver of six months' period for passing a decree of divorce on the ground of mutual consent under Section 13B of the Hindu Marriage Act, 1955. The reasons recorded are – (i) that the law does not provide for waiver of statutory period of six months stipulated under Section 17B of the said Act, (ii) that there is nothing on record to show that the parties to the proceedings had contested any other litigation prior to the present petition for divorce by mutual consent so as to avail the benefit of pendency of the proceedings to seek waiver, and (iii) that the real reason for filing the application is the desire of the petitioner No.1/husband to remarry and nothing more, which reason has also been stated in the application under consideration. 3. This petition is filed jointly by both the husband and the wife. The marriage between them was solemnized on 30-4-2012, and both of them are residing separately from 2-5-2014. Both were blessed with two daughters, who are minors. The petition for divorce by mutual consent was filed on 29-11-2016. Both the daughters are residing with the petitioner No.1/husband from 13-10-2015. The terms and conditions are agreed between the parties, which are stated in the petition in question. 4. The Division Bench of this Court has taken a view in paras 10 and 11 of the decision in the case of Mittal Remesh Panchal and another v. Nil, reported in 2014(3) Mh.L.J. 755 , as under : “10. The statutory period of six months provided under section 13B(2) has been provided with a specific intent that the possibility of last minute reconciliation can be worked out in such matters. In dispensation of justice, the Courts are expected to do the justice between the parties by overcoming the technical difficulties, coming in the way of imparting justice. The waiver of statutory period of six months though not specifically provided but same can be read in provisions as the main object of provision is to libralize divorce. The provision cannot be read in rigidity so as to make the provision ineffective and meaningless. The waiver of statutory period of six months though not specifically provided but same can be read in provisions as the main object of provision is to libralize divorce. The provision cannot be read in rigidity so as to make the provision ineffective and meaningless. The period of six months is nothing but period provided with a view to enable parties to reconsider their decision and instead of dissolving their marriage resolve their differences. It was never the intention of the legislature that such period is to be observed irrespective of the facts of the case wherein the marriage has been irretrievably broken and there are no chances of reconciliation between the parties or it would be futile exercise to wait for six months.” “11. While legislating the law, it is not possible for legislature to foresee all possible circumstances, which may arise in future. In order to overcome such situation in Code of Criminal Procedure as well as Code of Civil Procedure, the inherent powers have been conferred upon the Court of law by making specific provision to that effect in both the enactments. Section 151 of Civil Procedure Code provides inherent powers in Court to overcome the situation which was not visualized by the legislature. Section 151 provides inherent powers in Courts to make such orders as may be necessary to meet the ends of justice or to prevent abuse of process of law. Thus in any peculiar or extraordinary situation where the procedural law are inadequate to address such problem, the recourse of inherent powers under section 151 of the Civil Procedure Code can always be resorted by Courts of law.” 5. It is not the case where the parties have filed a petition for divorce by mutual consent within a period of six months from the date of solemnization of marriage. Almost four years have lapsed from the date of marriage and two years have lapsed from their separation. The parties have agreed that both the daughters of the petitioners shall remain with the petitioner No.1/husband. The Family Court appears to have ignored the law laid down by this Court in the case of Mittal Remesh Panchal, cited supra. The period of six months could have been waived in the facts and circumstances of this case, although there was no previous litigation between the parties. The Family Court appears to have ignored the law laid down by this Court in the case of Mittal Remesh Panchal, cited supra. The period of six months could have been waived in the facts and circumstances of this case, although there was no previous litigation between the parties. The reason that the petitioner No.1/husband desires to remarry is not germane to the issue of waiver to operate for refusal to grant such waiver. The order impugned cannot, therefore, be sustained and the same will have to be quashed and set aside. 6. In the result, the petition is allowed. The order dated 10-3-2017 passed by the Family Court, Akola, below Exhibit 9 in Family Petition No.77 of 2016, is hereby quashed and set aside. The application for waiver of period of six months is allowed. The Family Court to take into consideration all other relevant factors for passing a decree by mutual consent. 7. Rule is made absolute in above terms. No order as to costs.