In Mutual consent divorce can court waive six months Statutory Period?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

Writ Petition No.1930 of 2017
Nitin s/o Sudhakar Zaparde
Vs
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.

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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.”

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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.

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