Arulmozhi vs Nil on 31 January, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 31.01.2018

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

C.R.P(MD).No.194 of 2018

1.Arulmozhi
2.S.Soma Selvakumar … Petitioners /
Petitioners

Vs.

NIL … Respondent / Respondent

PRAYER:- Petition filed under Article 227 of the Constitution of India,
praying to direct the learned Family Judge, Madurai, to dispose of the
H.M.O.P.No.841 of 2017.

!For Petitioners : Mr.N.Madhava Govindan

^For Respondent:

:ORDER

This Civil Revision Petition has been filed seeking a direction to the
Family Court, Madurai for early disposal of the proceedings in H.M.O.P.No.841
of 2017.

2. The facts of the case, as averred in the affidavit filed in support
of the petition, are as follows:

2.1. The petitioners herein are couples and their marriage was
solemnized on 23.02.2015 at Chellam Gurusamy Samuthayakoodam, near
Theppakulam, Madurai. Due to differences of opinion between them, both are
living separately for the past two years and there are no issues. Both the
parties have entered into an amicable settlement and based on the compromise,
the criminal case in C.C.No.72 of 2016 was quashed. The
D.V.C., case was also not pressed.

2.2. Narrating all these facts, they had filed a petition under Section
13-B of the Hindu Marriage Act, 1955, in H.M.O.P.No.841 of 2017, seeking to
dissolve the marriage solemnized between them and Family Court has fixed the
next hearing date of the said H.M.O.P., as 08.05.2018, since, according to
the Act, minimum ?cooling off? period of six months has to be given.

2.3. As both the parties have to take care of their carrier and
moreover, as the first petitioner is going to Abroad, they had jointly filed
two petitions before the Family Court to advance the date of hearing from
08.05.2018 to 18.01.2018 or any other date as the Court deems fit and to
waive the six months cooling period. The learned Family Court has returned
these petitions, stating that documents were not produced to show that the
first petitioner is going to abroad. Aggrieved over the same, the present
civil revision petition came to be filed.

3. The gist of the arguments put forth by the learned Counsel appearing
for the petitioners are as follows:

3.1. The learned Counsel for the petitioners would strongly contend
that the Family Court ought to have seen that by consent of both the parties,
they had filed the petitions to advance the hearing date, by waiving off the
six months cooling period, because they have to move on into their
professional life.

3.2. He would further contend that time is an important factor for the
first respondent, being a womenfolk, to go for a better marital life, if she
decide so. Each and every day delay for them would affect their future
marital life, by which, the problem would be more complicated for the
womenfolk.

3.3. In support of his contention, the learned Counsel for the
petitioners placed reliance on the judgment of this Court in the case of
P.Lydia Jenifar vs. S.Rajadurai in C.M.A.(MD)No.395 of 2017 (Decided on
20.09.2017), wherein, this Court, after a detailed and elaborate observation,
has granted divorce to the parties therein.

3.4. Relying upon this judgment, the learned Counsel for the
petitioners would submit that both the parties are ready to appear before the
Family Court on 05.02.2018 and therefore, he prays for a direction to the
Family Court to dispose of the H.M.O.P., proceedings, at an early date.

4. Heard the learned Counsel for the petitioners and perused the
documents placed on record.

5. Perusal of record shows that marriage between the petitioners had
taken place on 23.02.2015 and from the day of marriage, both of them were not
interested with each other and they lived as husband and wife only for a few
months without any cohabitation and for the past two years, they are living
separately. They also agreed not to claim any maintenance from other party in
future. It is also averred that in spite of several mediations between the
parties for reunion, it was not successful. Hence, the petitioners have
jointly filed H.M.O.P., seeking dissolution of marriage.

6. In a recent judgment reported in (2017) 8 SCC 746, Amardeep Singh
Vs. Harveen Kaur, the Hon’ble Supreme Court has ordered that the Court
dealing with the matter can waive the statutory period under
Section 13B(2)
of the Hindu Marriage Act, after considering certain parameters. The
relevant portions of the said judgment worth reproduction for disposal of the
case on hand:-

”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 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.

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.

21. 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.

22. Needless to say that in conducting such proceedings the Court can
also use the medium of video conferencing and also permit genuine
representation of the parties through close relations such as parents or
siblings where the parties are unable to appear in person for any just and
valid reason as may satisfy the Court, to advance the interest of justice.

23. The parties are now at liberty to move the concerned court for
fresh consideration in the light of this order.”

7. In the present case on hand, both the parties have jointly filed
H.M.O.P., seeking divorce on mutual consent, which itself shows that there is
no possibility of parties resuming cohabitation and there are chances of
alternative rehabilitation, since, for the past two years, they are not
living together and all the efforts made by their elders, for amicable
settlement, have ended in vain. Moreover, based on the compromise, the
criminal case has been quashed and the D.V.C., case was also not pressed.

8. This Court in the case of P.Lydia Jenifar vs. S.Rajadurai in
C.M.A.(MD)No.395 of 2017 (Decided on 20.09.2017), relying upon ample number
of judgments, has given a categorical finding that granting divorce to a
couple, after considerable period of time, is nothing but operation success
but patient died and has held as follows:

?..13. In the recent verdict, the Apex Court, has held in the case of
Amardeep Singh Versus Harveen Kaur (Civil Appeal No.11158 of 2017), the
Supreme Court waived the six-month ‘waiting period’ once compulsory for
mutual consent divorce. This was definitely give a solace for mutual divorce
couple, because, some times, the matrimonial case consumes minimum two to
twelve years.?

9. In view of the foregoing discussions, this Court, hereby, directs
the petitioners to appear before the Family Court, Madurai within a period of
one week from the date of receipt of a copy of this order and the learned
Judge, Family Court, Madurai is directed to proceed with the divorce petition
in H.M.O.P.No.841 of 2017, strictly taking into consideration the parameters
stated in the above judgment of the Apex Court and dispose of the H.M.O.P.,
petition within a period of one month thereafter, so as to enable the parties
for alternative rehabilitation, both in their personal and professional life.

10. This Civil Revision Petition is allowed accordingly. No costs.

To
The Family Court,
Madurai.

.

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