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2021 DIGILAW 279 (ORI)

Saroja Kumar Mohanty And Anr. v. Family Court

2021-06-29

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - Heard the submission of Mr.SJ. Mohanty, learned counsel appearing for both husband and wife. 2. Petitioners filing the present writ petition challenge the order dated 09.03.2021, passed by the Judge, Family Court, Bhubaneswar in rejection of an application for waiving the six months locking period in considering an application under Section 13-B of the Hindu Marriage Act, 1955 at the instance of both husband and wife. 3. Taking this Court to the position of the parties in the Family Court being undertaking a joint exercise for divorce at their instance and further taking this Court to the decision of Hon'ble apex Court in the case of Amardeep Singh Vrs. Harveen Kaur ; AIR 2017 SC 4417 , Mr. Mohanty, learned counsel appearing for both husband and wife contended that the rejection of the joint application of the petitioners taking note of an earlier decision becomes bad. A request is thus made by both the petitioners by interfering in the impugned order to direct the Judge, Family Court, Bhubaneswar for immediate disposal of the proceeding u/s.13-B of the Hindu Marriage Act, 1955. 4. Considering the submissions and rival contentions of the State Counsel, this Court finds C.P. No.21 of 2021 undisputedly remain a joint application by both husband and wife and accompanied by joint affidavit for granting mutual divorce, which is not disposed of expeditiously by the Judge, Family Court, Bhubaneswar and the parties compelled to file application vide Annexure-2 for exemption of the cooling period of six months and disposing the Sec.13(B) application. It is considering such application, the Judge, Family Court, Bhubaneswar has rejected the said application, however taking note of the decision of the Hon'ble Apex Court passed in the year 2009. 5. Considering the submission and the plea of the parties, this Court is of the opinion that for the joint application being filed for a mutual divorce, there should not be any impediment in disposing of such application. 6. At this stage, this Court also takes note of the decision of the Hon'ble apex Court in Amardeep Singh (supra), wherein paragraphs-16, 17, 18, 19 and 20 of the said judgment, Hon'ble apex Court observe as follows : "16. 6. At this stage, this Court also takes note of the decision of the Hon'ble apex Court in Amardeep Singh (supra), wherein paragraphs-16, 17, 18, 19 and 20 of the said judgment, Hon'ble apex Court observe as follows : "16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh's "Principles of Statutory Interpretation" (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors. as follows: "The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: 'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. In an oft-quoted passage Lord Campbell said: 'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.' " 'For ascertaining the real intention of the legislature', points out Subbarao, J. 'the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered'. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory." 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 13-B(2), it can do so after considering the following : i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B (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 re-unite 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. 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." 7. From the above decision it is apparent that law on the issue involved herein and as parties have already mutually agreed to dispose their marriage by mutual divorce, there is no purpose keeping such parties waiting for the required period. Rather by disposing such disputes both parties may be able to get peace in settling for the rest part of life. Considering the submission of learned counsel for both the parties and decision of the Hon'ble apex Court as reflected hereinabove, this Court finds there is mechanical disposal of the application of the petitioners by the Judge, Family Court, Bhubaneswar and he has not exercised discretionary power available with him. For the application of the judgment of the Hon'ble apex Court in Amardeep Singh (supra), this Court interfering in the impugned order dated 9.3.2021 passed in C.P. No.21 of 2021, sets aside the same and directs the Judge, Family Court, Bhubaneswar to dispose of the C.P. No.21 of 2021, as expeditiously as possible, preferably within a period of two weeks from the date of receipt of copy of this order. 8. With the above direction, the writ petition stands succeed. However there is no order as to costs.