Thursday, 25 May 2017

Whether court can waive six months time in petition for divorce by mutual consent?

This petition is filed jointly by both the husband and the
wife.  The marriage between them was solemnized on 30­4­2012,
and both of them are residing separately from 2­5­2014.   Both
were blessed with two daughters, who are minors.  The petition
for divorce by mutual consent was filed on 29­11­2016.  Both the
daughters are residing with the petitioner No.1/husband from
13­10­2015.  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 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.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.1930 of 2017
 Nitin s/o Sudhakar Zaparde Nil. 

Coram : R.K. Deshpande, J.
    Dated  : 7th April, 2017
Citation: 2017(3) ALLMR 374

2. This petition challenges the order dated 1­3­2017 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 30­4­2012,
and both of them are residing separately from 2­5­2014.   Both
were blessed with two daughters, who are minors.  The petition
for divorce by mutual consent was filed on 29­11­2016.  Both the
daughters are residing with the petitioner No.1/husband from
13­10­2015.  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 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   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   1­3­2017   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.

Print Page

No comments:

Post a comment