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2022 DIGILAW 1829 (GUJ)

JATIN DILIPBHAI JANI v. VEERAL JATIN JANI

2022-12-21

NIKHIL S.KARIEL

body2022
ORDER : 1. Learned Advocate Ms. Megha Jani appearing with learned Advocate Mr. Arjun Joshi would submit that they have instruction to appear for the respondent and would request that the Registry may be directed to accept their vakalatnama. Permission is granted. Registry to accept their vakalatnama for the respondent. 2. Heard learned Advocate Mr. Aaditya Bhatt for the petitioner and learned Advocate Ms. Megha Jani appearing with learned Advocate Mr. Arjun Joshi for the respondent. 3. While the present petition has been preferred inter-alia challenging an order dated 11.11.2022 passed in Civil Misc. Application No. 10/2022 by the learned Principal Judge, Family Court, Ahmedabad and whereas it appears that during the pendency of the present petition, the parties to the litigation i.e. the petitioner, being the husband and the respondent, being the wife, have arrived at an amicable settlement and whereas consent terms are presented to this Court. 4. Both the learned Advocates for the respective parties would submit that the parties are present in this Court and whereas this Court may pass appropriate order in terms of the consent terms submitted by the parties. 5. It is required to be mentioned herein that the parties to the litigation, as noted herein above, had got married on 12.9.2000 and whereas the parties are parents of two daughters named Aaryana aged 19 years and Anaya aged 13 years. Both the parties are reasonably educated persons and whereas both the parties agree to the fact that they have been staying separately since the year 2016. Both the parties, as it appears, have filed independent proceedings being HMP No. 2206 of 2019 and HMP No. 1081 of 2020 praying for divorce from each other. The learned Advocates for the parties would submit that the parties have been staying separately since the year 2016 and since both are of mature age and being well educated individuals, they understand the consequences of their action and whereas the parties would jointly request that the statutory waiting period of six months as contemplated under Section 13B(2) of the Hindu Marriage Act be waived and a decree of divorce on mutual consent may be passed by this Court. 6. 6. While the parties have requested for an order in terms of the ‘Consent Terms’ submitted, but at the same time, since a question with regard to waiver of statutory period of six months as contemplated under Section 13B(2) of the Hindu Marriage Act has arisen, therefore, the said aspect as to whether this Court is empowered to grant waiver of statutory period or not is required to be decided. In this regard, this Court seeks to rely upon the observations of the Hon’ble Apex Court in case of Amardeep Singh vs. Harveen Kaur, (2017) 8 SCC 746 and Amit Kumar vs. Suman Beniwal, 2021 SCC Online SC 1270. In case of Amardeep Singh (supra), the Hon’ble Apex Court was considering a question as to whether Section 13B(2) has to be read as mandatory or discretionary. The Hon’ble Apex Court, after inter alia discussing the object of introduction of Section 13B(2) had held that the Court is empowered to waive statutory period under Section 13B(2). Paragraphs 15, 16, 17, 19 and 20 being relevant for the present purpose are reproduced herein below for benefit: “15. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony. 16. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation. 17. 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. 17. 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. 18. xxx xxx xxx 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 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. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 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. 20. (iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 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. 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.” 7. From the above observations and directions laid down by the Hon’ble Apex Court, while it becomes clear that the period mentioned in Section 13B(2) of the Hindu Marriage Act is not mandatory but directory, but the same would be upon satisfaction of the Court, more particularly with regard to the aspects set out by the Hon’ble Apex Court. 7.1. In the later decision of Amit Kumar (supra), the Hon’ble Apex Court, while reiterating and explaining the law laid down by the Hon’ble Apex Court in Amardeep Singh (supra), had set out certain further aspects, which were to be considered by the Court while deciding an application for grant of waiver of statutory period under Section 13B(2). Paragraph 27 of the said decision being relevant for the present purpose is quoted herein below for benefit: “27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B (2) of the Hindu Marriage Act, the Court would consider the following amongst other factors: (i) the length of time for which the parties had been married. (ii) how long the parties had stayed together as husband and wife. (iii) the length of time the parties had been staying apart. (iv) the length of time for which the litigation had been pending. (v) whether there were any other proceedings between the parties. (vi) whether there was any possibility of reconciliation. (vii) whether there were any children born out of the wedlock. (viii) whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc.” 7.2. (vi) whether there was any possibility of reconciliation. (vii) whether there were any children born out of the wedlock. (viii) whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc.” 7.2. Thus, it would appear that the Court is empowered to waive the statutory period and whereas the factors noted in the above paragraph would have to be considered by the Court concerned before grant of the waiver. 8. Before this Court considers the facts of the case, from the touchstone of the factors set out by the Hon’ble Apex Court, it would be beneficial to observe that both the decisions referred to herein above in case of Amardeep Singh (supra) and Amit Kumar (supra) have laid down the law with regard to waiver of statutory period under Section 13B(2) in the context of such a power being exercised by a Court other than Hon’ble Apex Court under Article 142 of the Constitution of India. At paragraph 12 of the judgment in case of Amardeep Singh (supra), the Hon’ble Apex Court had inter-alia observed that the issue in question was whether it was open to the Family Court to waive cooling off period of six months under Section 13(B). It was in context of such a question that the Hon’ble Apex Court had observed as quoted hereinabove. 8.1. In case of Amit Kumar (supra), the Hon’ble Apex Court was concerned with a petition where the parties had moved an application under Section 13B along with an application for waiver of waiting period of six months under Section 13B(2) before the learned Family Court and whereas relying upon the decision of Amardeep Singh (supra), the learned Family Court had rejected the said application, constraining the applicant therein to move the learned High Court of Punjab and Haryana, which application was also rejected, relying upon Amardeep Singh (supra). It is in this context that the Hon’ble Apex Court had explained the decision of Amardeep Singh (supra) and whereas the Hon’ble Apex Court at paragraph 27, as quoted herein above, laid down certain further factors to be considered by a Court while hearing an application for waiver of cooling off period under Section 13B(2). It is in this context that the Hon’ble Apex Court had explained the decision of Amardeep Singh (supra) and whereas the Hon’ble Apex Court at paragraph 27, as quoted herein above, laid down certain further factors to be considered by a Court while hearing an application for waiver of cooling off period under Section 13B(2). It would further be relevant to mention that the Hon’ble Apex Court, after having allowed the appeal as mentioned at paragraph 29, went on further and exercised power under Article 142 of the Constitution of India to grant the appellant and the respondent therein a decree of divorce by mutual consent. A plain reading of the judgment more particularly paragraphs 29 and 30 would make it abundantly clear that the issue in question as decided by the Hon’ble Apex Court was with regard to power of Family Court and the High Court to waive the statutory cooling off period and whereas having answered the issue in question the Hon’ble Apex Court exercised power under Article 142 and granted divorce to the parties. Thus, the decision is not to be construed as one passed exercising extraordinary jurisdiction under Article 142 of the Constitution of India. In the considered opinion of this Court, while the law laid down by the Hon’ble Apex Court in both the decisions i.e. Amardeep Singh (supra) and Amit Kumar (supra) with regard to exercise of power by a Court i.e. not only the Hon’ble Apex Court, and whereas, the proposition of law laid down by the Hon’ble Apex Court was in context of any Court exercising power to waive statutory period under Section 13B(2) of Hindu Marriage Act. 9. Having observed as above, this Court would now examine the fact situation from the standpoint of the factors laid down by the Hon’ble Apex Court at paragraph 27 in judgment of Amit Kumar (supra). It appears that the parties had got married in the year 2000 and whereas the parties had stayed together as husband and wife for approximately 16 years and whereas from the year 2016, the parties are residing separately i.e. since the last six years or so. The litigation between the parties is pending since last three years and whereas it also appears that there is a proceeding for custody of younger daughter of the parties pending. It also appears that there is no possibility of reconciliation. The litigation between the parties is pending since last three years and whereas it also appears that there is a proceeding for custody of younger daughter of the parties pending. It also appears that there is no possibility of reconciliation. As regards the children from the marriage, it appears that the parties have two children of which the elder daughter is a major and whereas the younger daughter is aged around 13 years residing with the respondent. It also appears that the parties have arrived at a genuine settlement of their own accord, without any coercion or pressure and whereas the respondent has neither claimed, nor will claim any time in future any maintenance or alimony from the petitioner. Considering the above aspect, it appears that the parties have been living separately for last six years and whereas the parties i.e. both the parties have filed separate applications for being granted divorce from each other. The application preferred by the respondent is of the year 2019 and whereas the application preferred by the petitioner is of the year 2020. It also appears that the parties would not want to reconcile and whereas in view of the specific ‘Consent Terms’ and in view of the facts as noted herein above, in the considered opinion of this Court, no useful purpose would be served by making the parties wait, except prolonging their agony. In this view of the matter, this Court deems it appropriate to waive the statutory waiting period of six months under Section 13B(2) of Hindu Marriage Act, 1955 and whereas this Court also deems it appropriate to grant divorce by mutual consent to the parties and whereas the ‘Consent Terms’ as submitted by the parties is incorporated as below: “Consent Terms 9.1. The petitioner and respondent are husband and wife. Their marriage was solemnized as per rites and rituals under the Hindu Marriage Act on 12.9.2000. The parties are parents to two daughters, Aaryana aged 19 years and Anaya aged 13 years. 9.2. The parties have been staying separately since 2016. The parties have, thus, been living separately for a period of more than one year and have not been able to live together. All efforts to resolve their disputes and reconcile have failed and the marriage between the parties has broken irretrievably. 9.3. The respondent has filed HMP No. 2206 of 2019 for divorce. The parties have, thus, been living separately for a period of more than one year and have not been able to live together. All efforts to resolve their disputes and reconcile have failed and the marriage between the parties has broken irretrievably. 9.3. The respondent has filed HMP No. 2206 of 2019 for divorce. The petitioner has filed HMP No. 1081 of 2020 for divorce. 9.4. Pending the aforementioned proceedings, the parties have arrived at an amicable settlement and have decided to dissolve their marriage by mutual consent under Section 13B of the Hindu Marriage Act, 1955. 9.5. The respondent has not claimed, and shall not claim, any maintenance or alimony from the petitioner. 9.6. The elder daughter of the parties is now a major. The younger daughter of the parties has been staying with the respondent since the beginning and even after 2015. The petitioner has filed CMA DC 156 of 2022 with respect to custody/visitation rights qua the younger daughter. The parties agree that the said petition shall be decided on its own merits. 9.7. The captioned applications arise out of HMP No. 2206 of 2019 and HMP No. 1081 of 2020 filed by the parties seeking divorce against each other. The parties have no objection if a decree of divorce by mutual consent is passed in the captioned proceedings by this Hon’ble Court. That the parties are staying separately since 2016, considering that the parties have stayed apart for a long time, are of mature age and educated, the parties pray that the statutory period of 6 months, as contemplated under Section 13B(2) be waived. The parties declare and undertake that they shall not raise any objections with respect to the decree of divorce on mutual consent passed by this Hon’ble Court based on these consent terms in any manner whatsoever. 9.8. The parties have executed affidavits in terms of these Consent Terms which also be treated as part of these Consent Terms. 9.9. The parties pray that their marriage be dissolved with mutual consent under Section 13B of the Hindu Marriage Act, 1955 in pursuance of the consent affidavit filed in the captioned application. 9.10. In view of the aforesaid, HMP No. 2206 of 2019 and HMP No. 1081 of 2020 do not survive and be disposed of accordingly.” 10. 9.9. The parties pray that their marriage be dissolved with mutual consent under Section 13B of the Hindu Marriage Act, 1955 in pursuance of the consent affidavit filed in the captioned application. 9.10. In view of the aforesaid, HMP No. 2206 of 2019 and HMP No. 1081 of 2020 do not survive and be disposed of accordingly.” 10. In view of the consent terms mutually arrived at between the parties, prayer for decree of divorce is granted. Registry is directed to draw decree accordingly. The consent terms as well as the affidavit filed by the respective parties are directed to be taken on record. 11. With the above observations and directions, the present petition is disposed of as allowed. Direct service is permitted.