Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1986 (KAR)

Atif Ulla Shariff v. Nil

2020-10-05

B.M.SHYAM PRASAD

body2020
JUDGMENT B. M. Shyam Prasad, J. - The petitioners are the husband and wife, and their marriage is solemnized on 22.12.2016 under the provisions of Special Marriage Act, 1954 (for short, the Special Marriage Act ). The petitioners have filed a petition for divorce by mutual consent under Section 28 of the Special Marriage Act in MC No.1828/2020 on the file of the I Addl. Principal Judge, Family Court, Bengaluru (for short, the Family Court ). The petitioners are before this Court because the Family Court by the impugned order dated 29.7.2020 has rejected their application (IA No. 2) for waiver of the statutory period of 6 months. 2. The petitioners aver that the first petitioner, the husband, is an Indian National while the second petitioner, the wife, is an Iran National. They do not have any children. Their marriage is irretrievably broken down and there are no possibilities of the revival of a harmonious matrimony. They have been living separately from April 2019, and after a lot of deliberation and thought, they have agreed to seek dissolution of marriage by mutual consent. They have also agreed, after discussions and deliberations, on terms for a full and final settlement which includes monetary payment and exchange of articles. The continuance of their matrimony, despite the above, would not only be agonizing for both but would also put the second petitioner, an Iran National, into difficulty as her visa, which was valid until August 2020, has been extended only until February 2021. 3. The learned Counsel for the petitioners submits that the statutory period of six months contemplated under Section 28 (2) of the Special Marriage Act is only directory and not mandatory and in certain circumstances, it would be open to the Court to waive the statutory period. However, the Family Court has rejected the petitioner s application for waiver of statutory period without considering the circumstances that are peculiar to the petitioners. The learned Counsel relies upon a decision of the Hon ble Supreme Court in Amardeep Singh vs. Harveen Kaur, (2017) 8 SCC 746 in support of her submissions. However, the Family Court has rejected the petitioner s application for waiver of statutory period without considering the circumstances that are peculiar to the petitioners. The learned Counsel relies upon a decision of the Hon ble Supreme Court in Amardeep Singh vs. Harveen Kaur, (2017) 8 SCC 746 in support of her submissions. The learned counsel emphasizes that given that the provisions of Section 28(2) of the Special Marriage Act are pari materia with the provisions of Section 13 (b) of the Hindu Marriage Act 1955, the enunciation of law by the Hon ble Supreme Court in the aforesaid decision of Amardeep Singh v. Harveen Kaur would apply in all force even in the cases filed under the provisions of the Special Marriage Act. 4. It is seen that the Family Court, after referring to the aforesaid decision of the Hon ble Supreme Court in Amardeep Singh v. Harveen Kaur supra, has opined that the petitioners case would not come within the guidelines prescribed. Therefore, the petitioners will have to wait out the statutory period of six months and such statutory period will expire in December 2020. It is obvious from the Family Court s order that the Family Court has dismissed the application refusing waiver of statutory period on the ground that the petitioners have not established the circumstances that would justify waiver. 5. It would be useful to refer to the law declared by the Hon ble Supreme Court in the aforesaid decision, which is as under: 19. 5. It would be useful to refer to the law declared by the Hon ble Supreme Court in the aforesaid decision, which is as under: 19. 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 32-A 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. 20. 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. 6. The guidelines are that the statutory period of six months and the statutory period of one year preceding the date of petition must be completed before the application for waiver could be considered. Apart from this, the Court must also satisfy itself that there is no possibility of parties resuming their matrimonial despite genuine effort to settle their defenses over issue such as alimony, custody of children and other issues. The statutory period could be waived if the aforesaid conditions are fulfilled and if the Court is of the opinion that further wait would only agonize the parties. These Guidelines are enunciated while declaring that the stipulation of the statutory period of six months before the petition for a mutual divorce is to be taken up for consideration is only directory and it is always open to the Courts to exercise the discretion in a given set of facts and circumstances. These Guidelines are enunciated while declaring that the stipulation of the statutory period of six months before the petition for a mutual divorce is to be taken up for consideration is only directory and it is always open to the Courts to exercise the discretion in a given set of facts and circumstances. There can be no doubt that these guidelines would also apply to the present case which is a petition under the provisions of the Special Marriage Act for the reasons urged by the learned counsel for the petitioners. 7. In this case admittedly one of the parties viz., the wife, is a foreign national (she is a citizen of Iran) and the petitioners, who have been living separately from April 2019, are unable to sort out their differences. They have mutually agreed to seek dissolution of their marriage and have come to terms, including the terms as regards financial arrangement and custody of articles. They do not have any children. As of today, they have been living separately for over 18 months, that is from April 2019. If an application for waiver would be filed presently, the stipulation as regards the completion of the statutory period of one year preceding the date of petition and six months thereafter would be satisfied. 8. In the facts and circumstances adverted to above, this Court is also of the view that the possibilities of a reconciliation between the petitioners could be remote, and with one of the petitioners, the wife, being a foreign national who has to return to a country of her origin, Iran, any delay could only agonize the petitioners who should be traumatized by their failed matrimony. In such circumstances, this Court is of the considered opinion that it would be just and proper to set-aside the impugned order and allow the application viz., IA.2 filed by the petitioners for waiving the statutory period directing the Family Court to consider the petition for mutual divorce. Therefore, the following: ORDER a) The petition is allowed and the impugned order dated 29.7.2020 on IA.2 in MC No.1828/2020 on the file of the I Addl. Principal Judge, Family Court Bengaluru is quashed and the application (IA.2) is allowed waiving the statutory period of six months as contemplated under Section 28 of the Special Marriage Act. b) The petitioners shall be at liberty to move an application with the I Addl. Principal Judge, Family Court Bengaluru is quashed and the application (IA.2) is allowed waiving the statutory period of six months as contemplated under Section 28 of the Special Marriage Act. b) The petitioners shall be at liberty to move an application with the I Addl. Principal Family Court, Bengaluru in MC No.1828/2020 along with a copy of this order for advancing the petition to a date that is convenient to the Family Court for expeditious disposal of such petition.