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Writ Petition No.1381 of 2010

Rakesh Harsukhbhai Parekh .. .. Petitioner
1.State of Mah.
2.Niti R. Parekh .. .. Respondents
Mr.Uday Prakash Warunjikar i/by Mr.Pravartak Pathak with
Mr.Hitesh Bhutekar for Petitioner.
Mr.S.N. Bhosale, AGP for Res.No.1.

DATED : 23rd February, 2010

1.Rule, returnable forthwith.

2.The Petitioner and Respondent No.2 are husband and
wife. They married on 20.5.2005. They started living
separately since 19.5.2006. The Petitioner-husband
filed a Petition under Section 13 of the Hindu Marriage
Act for divorce on the ground of cruelty of Respondent
No.2 on 12.6.2007. After part evidence was recorded in
the Petition, the parties settled their dispute. They
withdrew allegations against one another and filed
Consent Terms on 16.12.2009 with regard to the grant of
divorce for withdrawal of the allegations and the grant
of lump sum alimony to the wife. Thereafter they made
a joint application for  waiver of the 6 months
period for acting upon the Consent Terms and obtaining
a divorce by mutual consent under Section 13B of the
Hindu Marriage Act on 14.1.2010. Their application has
come to be rejected on the ground that the period
cannot be waived and that the Petition has to be
adjourned for 6 months.

3.Section 13 of the Hindu Marriage Act is in respect of
dissolution of a marriage by a decree of divorce on the
grounds stated therein. Consequently, under that
section upon proof of any of the grounds the marriage
could be dissolved by decree of divorce.

4.Section 13B of the Hindu Marriage Act is in respect of
dissolution of a marriage by decree of divorce upon a
Petition presented to the District Court by both
parties to a marriage together on the ground that they
have been living separately for a period of one year or
more and that they have not been able to live together
and that they have mutually agreed that the marriage
should be dissolved.

5.Under Section 13B(2), the Court is required to pass a
decree of divorce declaring the marriage to be
dissolved upon the motion of both the parties made
after 6 months of the presentation of the Petition and
within 18 months thereof.

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6.It is on the premise that the application for divorce
by mutual consent which came to be treated as a
Petition for divorce by mutual consent under Section
13B of the Act, the learned Judge in the impugned order
did not grant the divorce but observed that the
Petition had to be adjourned for 6 months mandatory
period. It must be appreciated that Section 13B was by
the Amendment Act 68 of 1976 enacted to allow the
parties to file Petitions for divorce by mutual consent
upon the grounds stated therein which are that they are
living separately and are not able to live together.
Section 13B contemplates a Petition initially filed by
the parties. It would be filed upon the premise that
the parties have decided that they could not and hence
have not lived together but have lived separately.

7.The provision under Section 13B(2) is the respite
period granted to such parties to reconsider their
decision to dissolve their marriage. The provision
lays down what a Judge is required to do if the
Petition is not withdrawn before 6 months to 18 months
statutory period when it remains on the file of the
Court. If a Petition under Section 13 has remained on
the file of the Court for as long as 3 years as in this
case, the parties require no respite period to
reconsider their decision to dissolve a broken marriage
in which various allegations based upon the grounds
under Section 13 have been made and later withdrawn
upon seeing reason.

8.The Court must further consider Section 9 of the Family
Courts Act,1984, which enjoins the Family Court to
consider the alternative mode of reconciliation between
the parties. A reconciliation may be positive in which
case parties may come together as husband and wife. If
not, reconciliation by way of amicable settlement of
their dispute by divorce could also be arrived at.

9.Section 89 of the Code of Civil Procedure (CPC), which
applies to the Family Court since it is the Civil Court
under Section 10(1) of the Family Courts Act, further
enjoins the Court to follow the resolution of the
dispute by an alternative mode, including the mode of
mediation. If that is followed, the parties would
settle their dispute and withdraw the allegations and
if in the meantime a period of 6 months has transpired,
the statutory period of respite is availed of by the
parties. Consequently, the literal interpretation of
Section 13B(2)of the Hindu Marriage Act would not be
required in case of parties filing Consent Terms and
withdrawing the allegations against one another after a
Petition for divorce has been filed more than 6 months
prior to such withdrawal of allegations and filing of
Consent Terms thereunder, be it under Section 13 and
not under Section 13B of the Act.

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10.The learned AGP appearing for Respondent No.1-State
tenders a judgment in the case of Anil Kumar Jain vs.
Maya Jain, II (2009) DMC 449 (SC) in which the Supreme
Court allowed such a Petition to be granted under its
powers under Article 142 of the Constitution of India.
The order of the Family Court has not been challenged
on the ground that it could be passed under Article 142
of the Constitution of India. Even this Court cannot
and is not passing an order under Article 142 of the
Constitution of India. However, upon a harmonious
construction of the aforesaid provisions of the Family
Courts Act, the CPC and the Hindu Marriage Act, 1955,
it can be seen that the period of respite is not
required to be  waived . It is the period which ha s
passed when the Petition was pending under Section 13
of the Hindu Marriage Act. It is only upon conversion
of that Petition under Section 13B of the Hindu
Marriage Act that the Petition filed on the grounds of
cruelty making allegations of cruelty is converted into
a Petition where the allegations stand withdrawn upon
the parties having settled their disputes.

11.The parties, who settle their dispute, are not
required to be penalised for settling their disputes.
They have gone through the process of divorce in the
Court for more than 6 months when the Petition remained
pending. They have only modified their views upon
settlement of the dispute. Hence such a Petition,
though for divorce by mutual consent which would be
granted to both parties and not for divorce upon the
grounds under Section 13 of the Hindu Marriage Act, has
lived through 6 months period in the Family Court
already. Consequently, that period of 6 months, which
the law requires the parties to undergo while the
Petition remains pending, is undergone; only the
acrimonious allegations are withdrawn so that the
divorce can be granted amicably to both rather than to
one of the spouses.

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12.It may be appreciated that any Petition, which is
filed in Court, may or may not be contested. If it is
uncontested, an ex-parte decree may be passed under
Order IX of the CPC, which applies to Family Courts as
Civil Courts. A decree of divorce could be passed
under that provision also. That can be passed within
less than 6 months of filing the Petition. That, of
course, would be based upon the allegations made in the
Petition which are not controverted by the Respondent
therein. That enables the Petitioner to obtain a
decree of divorce. If those allegations came to be
withdrawn, as in this case, and as is desirable under
the reconciliatory mode in which Family Courts are
expected to function, the parties who withdraw the
allegations must both be entitled to a decree of
divorce without the burden and restraint which is cast
by Section 13B(2) for parties who appear initially in
the Court together by way of a Petition for divorce by
mutual consent.

13.Consequently, the view expressed by the learned Judge,
considering all the above modes in harmony, is seen to
be erroneous. The impugned order dated 7.1.2010 passed
by the learned Judge of 7th Family Court at Mumbai is,
therefore, set aside. The Writ Petition is allowed and
the Petition is remanded to the Family Court to pass
the necessary orders under Section 13B of the Hindu
Marriage Act on the next date of hearing. Rule is made
absolute accordingly.

14.No order as to costs.


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