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2023 DIGILAW 2184 (ALL)

Priti Yadav @ Pinki v. Ashwani Gwal

2023-09-20

ARUN KUMAR SINGH DESHWAL, SAUMITRA DAYAL SINGH

body2023
JUDGMENT In re: Civil Misc. Delay Condonation Application No. 01 of 2023 Present appeal has been presented with a delay of 11 days. The same has been duly explained. 2. Cause shown is sufficient. 3. Delay is condone. Delay condonation application is allowed. Order on Appeal 4. Heard Sri Prakash Dwivedi, learned counsel for the appellant and Sri Sheo Mani Yadav, learned counsel for the respondent. 5. The present appeal has been filed under section 19 of the Family Courts Act, 1984, arising from order dated 31.5.2023 passed by the Principal Judge, Family Court, Allahabad in Case No. 1074 of 2023 (Ashwani Gwal v. Priti). By that order the learned court below has entertained the joint petition filed by the parties under section 13-B Hindu Marriage Act, 1955 (hereinafter referred to as "Act, 1955"). However, it is the grievance of both the parties that, instead of waiving the statutory period of six months, the learned court below has referred the matter to mediation and thereafter directed the first motion petition to be listed on 20.9.2023. Thereafter, the date for second motion petition has been fixed for 4.12.2023. 6. At present, the parties appear to be in agreement that their marriage has failed, completely. Also, though they were married in the year 2009, they have no children born from the marriage and have been living separately since 20.2.2015. They have never cohabited in the meanwhile. Having reached the consensus that their marriage does not survive, the parties had approached the learned court below jointly, to seek dissolution of their marriage. Instead of granting waiver, with respect to the statutory period, the learned court below has acted mechanically in referring the matter to mediation. Even thereafter, the learned court below has required the parties to appear on the first motion petition on 20.9.2023 and almost two months thereafter, a date has been fixed for the second motion petition. 7. In the unfortunate circumstances in which the parties find themselves, it has been urged that such long date fixed in the proceedings after the parties have reached a consensus that their marriage does not survive, amounts to prolonging their otherwise insufferable agony. It is stated, fairly long period of separate living has been suffered by the parties as may have persuaded the Court to exercise its power to grant waiver to the present joint motion petition. It is stated, fairly long period of separate living has been suffered by the parties as may have persuaded the Court to exercise its power to grant waiver to the present joint motion petition. Reference has also been made to the fact that the parties are mature enough to understand the pros and cons of their action. Both are more than 30 years of age. It has further been stated that at present Ms. Priti Yadav is seeking a second matrimonial alliance. She seeks to start her life afresh. Thus for that circumstance, a joint petition had been filed. 8. The parties are also present in the Court. They have been duly identified by their respective counsel. The Court has briefly interacted with them. We are thus informed by Ms. Priti Yadav that her second marriage is to be solemnised, next month. Both the parties appear to have reached the consensus of their own free will that their marriage does not survive. They have also referred to certain failed efforts made to revive their marriage. 9. Thus, as an appeal Court, we are convinced that the parties have taken an informed decision to dissolve their marriage. They are both mature and appear to have taken the decision to give their lives a second chance. 10. Seen in that light, the rules of procedure ought to have been applied commensurate to circumstances brought before the Court. No pedantic or mechanical approach may have been adopted to unnecessarily refer the matter to the mediation or to make the parties wait for cooling off period to come to an end before taking up the joint petition for consideration on merits. Blind faith in such procedure may only prolong the agony of the parties. 11. In the context of matrimonial disputes arising in present times, the courts are required to stay tuned to the realities of life and depart from obsolete and conservative approach to such litigation. While preservation of marriage survives as a desired goal and all the courts must first examine if a troubled marriage may be made to work for the good of the parties involved, at the same time it essentially being a matter of personal choice, upon fair consensus reached by the parties to dissolve their marriage, parties may not be obstructed only to seek technical compliance of procedural safeguards. Those safeguards are meant to be enforced in deserving cases. Thus if there existed any doubt as to the genuineness or fairness of the consensus reached or if there survived any hope with either party that the marriage could be made to work the learned court below may have been right in referring the matter to mediation. 12. Here one of the parties to dispute has not only reached the point where she is of the opinion that her marriage does not survive but she is also looking forward to giving her life another opportunity. It is in that hope that she appears to have decided to solemnise her second marriage. Seen in the light, the approach adopted by the learned court below, is pedantic and not conducive to the ends of justice. The life of the parties having progressed this far, the learned court below should have acted mindful of the same and applied the procedure to the extent it was warranted. 13. Recently in Vijay Agarwal v. Suchita Bansal; (2023) 8 ADJ 484 , this Court, in occasion to consider the law in respect to waiver. It observed as under:- "4. The issue involved is no longer res integra. In Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 , it was held as below : "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 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 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. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 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 court concerned. 20. Since we are of the view that the period mentioned in Section 13 B(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." 5. That principle of law laid down by the Supreme Court has not been departed from, in any subsequent or other decision of that Court. 6. After considering the provisions of law, the Supreme Court had thus clarified that though the provision of Section 13B(2) postulates a cooling period of six months, that stipulation of time was not mandatory. Not only the provision stipulating six months' time period was held to be directory, further, the Supreme Court held that the discretion to waive that stipulation of time would vest in the Court dealing with the second motion petition. The intent of the decision of the Supreme Court and the interpretation of the law made by it are clear as daylight. Once the Supreme Court observed that the stipulation of time was directory and that the discretion to waive it may be exercised in the individual facts and circumstances of each case, by the Court, clearly, it had left no manner of doubt to arise with any party, less so the Court itself, as to who may exercise the discretion. 7. Insofar as the Supreme Court interpreted the statutory provision and laid down the law, that decision of the Supreme Court may never have been described as an exercise referable to Article 142 of the Constitution of India. 8. Article 142 of the Constitution of India enables the Supreme Court to do complete justice in the facts of any case. However, by very nature of that power, whenever exercised, that Court never seeks to lay down any proposition or principle of law. Here, to the contrary, the Supreme Court laid down the law in no uncertain terms. 8. Article 142 of the Constitution of India enables the Supreme Court to do complete justice in the facts of any case. However, by very nature of that power, whenever exercised, that Court never seeks to lay down any proposition or principle of law. Here, to the contrary, the Supreme Court laid down the law in no uncertain terms. It took note of the statutory provision contained under Section 13B of the Act, 1955 and interpreted it to reach the conclusion that the same was was directory and that the discretion to waive the stipulation of time would vest with the Court dealing with the second joint motion petition, seeking to dissolve the marriage between those parties." 14. Accordingly, we find that the ground for waiver is duly made out. The learned court below has erred in overlooking that aspect of the matter in directing the parties to seek mediation and wait for a period of six months. 15. Accordingly, the appeal is allowed. 16. The period of cooling off is waived. The second motion petition may be filed by the parties within a period of one week. It is expected that the learned court below would act expediently and ensure that the proceedings are concluded as expeditiously as possible preferably within a period of two weeks, subject to due compliance and cooperation by the parties.