HIGH COURT OF JUDICATURE AT ALLAHABAD

Judgment Reserved on 02.02.2021

Judgment Delivered on10.02.2021

Case:- FIRST APPEAL DEFECTIVE No. – 32 of 2021

Appellant:- Priyanka Chauhan

Respondent:- Principal Judge Family Court And Another

Counsel for Appellant:- Pankaj Agarwal

Counsel for Respondent:- Utkarshni Singh

Hon’ble Mahesh Chandra Tripathi, J.

Hon’ble Sanjay Kumar Pachori, J.

1. Heard Shri Pankaj Agarwal, learned counsel for the appellant (wife) and Ms. Utkarshni Singh, learned counsel for second respondent (husband).

2. The exemption application is allowed. Let the appeal be given regular number.

3. Present first appeal has been preferred assailing the validity of order dated 12.1.2021 passed by Incharge Principal Judge, Family Court, Gautam Budh Nagar in Divorce Petition No. 592 of 2020 Smt. Priyanka Chauhan v. Saurabh Chauhan, by which application 17/C has been rejected by learned Family Court without assigning any reason. The application 17/C has been filed by the appellant and second respondent supported with a joint affidavit 18/C for waiving six months statutory period for second motion before granting a decree for mutual divorce.

4. The question, which arises for consideration in the instant appeal under Section 19 of the Family Courts Act is whether the minimum period of six months stipulated under Section 13-B(2) of The Hindu Marriage Act, 19551 for motion of passing of decree of divorce on the basis of mutual consent may be relaxed in any exceptional situation.

5. The brief facts leading to the present appeal are that, a Divorce Petition for a decree of dissolution of marriage by mutual consent, was filed by the appellant and second respondent under Section 14 of the Act which was initially registered as Miscellaneous Case No. 89 of 2020, after expiry of one year from the date of marriage, registered as Original Suit. A joint application 17/C under sub-section (2) of Section 13-B the Act, along with joint affidavit 18/C has been filed by the parties stating that the marriage of appellant and second respondent was solemnized on 11.12.2019 with Hindu rites and rituals. The appellant is resident of Rohini, Delhi, whereas the second respondent is resident of Noida, Gautam Budh Nagar. It is contended that from the date of marriage the appellant lived only four days at her matrimonial house and from 16.12.2019 the appellant started residing at her parental house at New Delhi. On account of temperamental and ideological differences the marriage could not be consummated and both are residing separately from 16.12.2019. It is contended that various efforts were made by the family members of both the parties and their well wishers but they could not arrived at settlement to live together a happy married life. When all the efforts for reconciliation stands failed, they ultimately arrived into a settlement in writing dated 24.7.2020 for taking mutual divorce. In view, thereof, the details of articles mentioned in Schedule-A of the mutual settlement dated 24.7.2020 was handed over to the appellant in presence of all the well-wishers. Through mutual settlement dated 24.7.2020 it was further agreed that the articles mentioned in Schedule-B of the agreement shall be put into custody of one Sudhir Kumar son of Sri Jhanda Singh being closed relative and well-wisher of both the parties, which shall be handed over to the appellant after the second motion of divorce petition and recording of statement of appellant in divorce petition to be filed by mutual consent. It is being claimed that without there being any undue influence, threat or coercion the couple decided to dissolve their marriage by a decree of divorce.

6. The Family Court by the impunged order rejected the application 17/C on the ground that till date no effort has been made by the court for reconciliation and mediation between the parties, without considering the peculiar facts of the case. While they pleaded that marriage could not be consummated due to temperamental and ideological differences and both are residing separately from 16.12.2019 i.e. more than one year from the marriage; all the efforts for reconciliation stands failed; they arrived into a settlement in writing for taking a mutual divorce, articles mentioned in Schedule-A of the mutual settlement dated 24.07.2020 was handedover to the appellant and the articles of both the parties as mentioned in Schedule-B of the settlement put into the custody of one Sudhir Kumar; the parties have genuinely settled their differences including alimony and the statutory period of one year of separation of parties is already over.

7. Section 23 of the Act also provides the procedure regarding the effort to make endeavour to bring about a reconciliation between the parties. Sub-section (1) (bb) of Section 23 of the Act provides that before proceeding to grant any relief under this Act, the court is to be satisfied that a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence.

8. Hon’ble the Supreme Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the Court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher Court in the event of challenge to that judgment.

9. It is well settled position of law that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out. The “inscrutable face of a sphinx” is ordinarily incongruous with a judicial or quasi-judicial performance.

10. The parties have sought waiver of a period of six months for the second motion on the ground that they have been living separately for last more than one year and there is no possibility of their reunion. Any further delay will affect chances of their resettlement in life.

11. Learned counsel for the appellant has submitted that there is no chance of reconciliation between the parties due to their temperamental and ideological differences. The marriage has not been consummated and just after four days of marriages both are living separately.

12. Learned counsel for the appellant further submitted that the object of the cooling off the period was to safeguard against a hurried decision if there was, otherwise, possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there is no chance of reconciliation.

13. Learned counsel for the second respondent has also supported the arguments so raised by learned counsel for the appellant. She has also submitted that there is no chances of reconciliation and for the interest of the parties this Court may rescue and reprieve the parties.

14. On the matter being taken up on 29.1.2021, on the request of learned counsel for the appellant the matter was adjourned and posted for hearing on 2.2.2021. Ms. Utkarshni Singh, learned counsel has entered appearance on behalf of second respondent. The appellant and the second respondent are also present in the Court. Both the parties made a categorical statement before the Court that there is no chance of reconciliation. It has also been informed that the appellant has completed her C.A. Intermediate. The second respondent is working in IT company. It is submitted that both are educated and consciously they have taken decision to move on independently. Parties have also made statement that there is no chance of reconciliation and their families are also of the same opinion.

15. We have heard rival submissions, perused the record and also considered the statement so given by the parties.

16. The Hindu Marriage Act, 1955 is a special Act dealing with the provisions relating to marriages, restitution of conjugal rights and judicial separation as also nullity of marriage and divorce. (vide: Jagraj Singh v. Birpal Kaur2) Under section 13 of the Act marriage can be dissolved by decree of divorce on the various grounds enumerated therein and the same has been further qualified by Section 14 that no petition for divorce to be presented within one year of the marriage. However, an exception has been carved out by inserting a proviso in Section 14, with an intention to mollify the effect of the one year’s limit in very exceptional cases as the proviso to Section 14 of the Act engrafts a very important qualification on the general rule laid down in the section that no petition for dissolution of marriage by a decree of divorce can be entertained by the court before the statutory period expires. It enables the court in the exercise of its discretion to grant leave to present such petition before the expiry of the one year’s limit in a case of ‘exceptional hardship’ or ‘exceptional depravity’ to the appellant.

17. In catena of cases relating to matrimonial dispute, Hon’ble the Apex court has observed that matrimonial disputes have to be decided by Courts in a pragmatic manner keeping in view the ground realities. The fact which pricked the conscience of the Court is that even though the marriage was solemnized on 11.12.2019, the appellant stayed in her matrimonial house only for four days and from 16.12.2019 started living in her parental house. The marriage has not been consummated and they are voluntarily inclined to withdraw from the relationship due to temperamental and ideological differences, which is stated to be not compromised, and they could not enjoy their happy married life. In such situation, continuance of litigation will cause mental and physical harassment to them unnecessarily, when both of them are not inclined to continue with the relationship at all. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13-B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was, otherwise, possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation.

18. So far as determining the question, whether, the said period is mandatory or directory, the said aspect has been considered by Hon’ble the Apex Court in Amardeep Singh v. Harveen Kaur3. The relevant portion of the said judgment is quoted as under:-

“6. This Court noted that power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony4. This view was reiterated in Poonam versus Sumit Tanwar5
14. The learned amicus submitted that waiting period enshrined under Section 13-B(2) of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini6, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy7, Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra8, and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta9. Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan Moorkkanatt10. It was submitted that Section 13-B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13-B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13-B(2). Thus, the Court should consider the questions:
(i) How long parties have been married?
(ii) How long litigation is pending?
(iii) How long they have been staying apart?
(iv) Are there any other proceedings between the parties?
(v) Have the parties attended mediation/ conciliation?
(vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
15. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

16. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13-B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling- off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

18. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku11. as follows:(SCC pp. 496-97, para 34) ’34…..The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ”No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ (p.338) ”For ascertaining the real intention of the legislature’, points out Subbarao, J. ”the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”

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 13-B(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. 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.”

19. In the aforesaid case, Hon’ble the Apex Court has considered Section 13-B(2) of the Act, divorce by mutual consent and cooling off period of six months and held that the said period is directory with certain conditions under which the court concerned may waive off the said period. The waiting period enshrined under Section 13-B(2) of the Act is directory and can be waived by the court, where, proceedings are pending, in exceptional situation. Hon’ble the Apex Court in Amardeep Singh (Supra) has considered the discretion to waive the period, where, there is no chance of reconciliation and parties were already separated. In such situation it is paramount responsibility to consider the basic issues, which has been stipulated in para 14 of the said judgment as under:-

“(i) How long parties have been married?
(ii) How long litigation is pending?
(iii) How long they have been staying apart?
(iv) Are there any other proceedings between the parties?
(v) Have the parties attended mediation/conciliation?
(vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?”
20. In R. Srinivas Kumar v. Shametha12 Hon’ble the Apex Court considering the facts and circumstances of the case on being satisfied that marriage has irretrievably broken down has held that such marital relationship can be dissolved which is already dead, with a view to do complete justice between the parties. For ready reference, the relevant paragraphs 3.1 and 5.1 of the said judgment are quoted as under:-

“3.1. In support of his alternative submission to dissolve the marriage on the ground of irretrievable breakdown of marriage, learned Senior Advocate has heavily relied upon the following decisions of this Court, Durga Prasanna Tripathy v. Arundathi Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511; K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226; and Sukhendu Das v. Rita Mukherjee (2017) 9 SCC 632…..
5.1. At the outset, it is required to be noted and does not seem to be in dispute that since last 22 years both the appellat-husband and the respondent-wife are residing separately. It also appears that all efforts to continue the marriage have failed and there is no possibility of re-union because of the strained relations between the parties. Thus, it appears that marriage between the appellant-husband and the respondent-wife has irretrievably broken down. In the case of Hitesh Bhatnagar (supra), it is noted by this Court that Courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage and all efforts are made in that regard and when the Court is convinced beyond any doubt that there is actually no chance of the marriage surviving and it is broken beyond repair…….”
21. In Archi Agarwal v. Principal Judge, Family Court, Lucknow13 Hon’ble the Apex Court while considering the exemption of statutory period has held that such application can be allowed in cases of “exceptional hardship” or of “exceptional depravity” as continuance of litigation would cause mental and physical harassment to both the parties.

22. Subject to the provisions of the Act a petition for dissolution of marriage by a decree of divorce may be presented to the Principal Judge, Family Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have been mutually agreed that the marriage should be dissolved. For ready reference Section 13B of the Act is quoted as under:-

“13B. Divorce by mutual consent.- (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”
23. Section 13-B itself provides for a cooling period of six months on the first motion being moved, in the event the parties changed their minds during the said period. Accordingly, after the initial motion and the presentation of the petition for mutual divorce, the parties are required to wait for a period of six months before the second motion can be moved, and at that point of time, if the parties have made up their minds that they would be unable to live together, the Court, after making such inquiry as it may consider fit, grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

24. It is also urged that the other conditions contained in Section 13-B(1) of the Act has also been satisfied as the parties have been living separately for more than a year and had mutually agreed that the marriage should be dissolved. It was urged that except for the formality of not having made an application under Section 13-B, the other criteria has been duly fulfilled and having regard to the language of Section 13-B, a decree of dissolution of the marriage by way of mutual divorce should not be denied to the parties, since one month out of waiting period of six months contemplated under Section 13B had already been completed.

25. Hon’ble the Apex Court in Anil Kumar Jain v. Maya Jain14 had invoked its power under Art. 142 of the Constitution of India in the best interest of the parties as it had been urged that technicality should be tempered by pragmatism, if substantive justice was to be done to the parties.

26. It is undoubetedly true that the Legislature had in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. In such situation the intention of the Legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its discretion in an irreconcilable situation.

27. Hon’ble the Apex Court in Devinder Singh Narula v. Meenakshi Nangia15 has considered the cooling off period of six months prior to filing of second motion under Section 13-B in the backdrop that the parties living separately for more than one year, no formal ties of marriage between the parties and the marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired. The Supreme Court observed that there is no reason to continue the agony of the parties for another two months, when it is not possible for the parties to live together and to discharge their marital obligations towards each other for more than one year. The relevant portion of the said judgment is quoted as under:-

“10. As will appear in the averments made in this appeal, the appellant filed a petition under Section 12 of the Hindu Marriage Act on 1.6.2011 on the ground that the marriage contracted on 26.3.2011, was a nullity; that the parties had been living separately since their marriage and have not cohabitated with each other since 1.6.2011 and in future also they could never live together under one roof. According to the parties, they are residing separately from each other for the last one year and the respondent was presently working overseas in Canada. It is with such object in mind that during the pendency of the proceedings under Section 12 of the Act the parties agreed to mediation and during mediation the parties agreed to dissolve their marriage by filing a petition under Section 13-B of the above Act for grant of divorce by mutual consent.
11. In the proceedings before the Mediator, the parties agreed to move appropriate petitions under Section 13-B(1) and 13-B(2) of the Act. A report was submitted by the Mediator of the Mediation Centre of the Tis Hazari Courts to the Court in the pending HMA No.239 of 2011. It is pursuant to such agreement during the mediation proceedings that an application was filed by the parties in the aforesaid pending HMA on 15.12.2011 indicating that they had settled the matter through the mediation centre and that they would be filing a petition for divorce by mutual consent on or before 15.4.2012. On the strength of the said petition, the HMA proceedings were disposed of as withdrawn. Subsequently, on 13.4.2012 the parties filed a joint petition under Section 13-B of the Act on which the order came to be passed by the learned Additional District Judge -01, West Delhi, fixing the date for the second motion on 15.10.2012.
12. It is quite clear from the materials on record that although the marriage between the parties was solemnized on 26.3.2011, within 3 months of the marriage the petitioner filed a petition under Section 12 of the Hindu Marriage Act, 1955, for a decree of nullity of the marriage. Thereafter, they have not been able to live together and lived separately for more than 1 year. In effect, there appears to be no marital ties between the parties at all. It is only the provisions of Section 13-B(2)of the aforesaid Act which are keeping the formal ties of marriage between the parties subsisting in name only. At least the condition indicated in Section 13-B for grant of a decree of dissolution of marriage by the mutual consent is present in the instant case. It is only on account of the statutory cooling off period of six months that the parties have to wait for a decree of dissolution of marriage to be passed.
13. In the above circumstances, in our view, this is one of those cases where we may invoke and exercise the powers vested in the Supreme Court under Article 142 of the Constitution. The marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired. When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months.
14. We, accordingly, allow the appeal and also convert the pending proceedings under Section 12 of the Hindu Marriage Act, 1955, before the Additional District Judge-I, West Delhi, into one underSection 13-B of the aforesaid Act and by invoking our powers under Article 142 of the Constitution, we grant a decree of mutual divorce to the parties and direct that the marriage between the parties shall stand dissolved by mutual consent. The proceedings before the Additional District Judge-I, West Delhi, being HMA No.204 of 2012, is withdrawn to this Court on consent of the parties and disposed of by this order…….”
28. In K. Thiruvengadam v. Nil16 it was held that though it is obligatory for courts to make last minute efforts to save marriage, where there is no possibility of re-union and when process of divorce by mutual consent has been adopted it is open to court to waive 6 months’ period. Section 13-B is only directory and not mandatory and if held to be mandatory it would frustrate very liberalised concept of divorce by mutual consent.

29. In Miten v. Union of India17 it was observed that three ingredients had to be satisfied before the court to a relief under Section 13-B to the parties: (i) the parties had been living separately for a period of more than a year, (ii) they had not been able to live together and (iii) that they have mutually agreed to dissolve the marriage. Once these three statutory conditions are satisfied then it gives jurisdiction to the court to entertain a petition for divorce by mutual consent. Purpose of introducing mutuality was not to dissolve the marriage between the newly wed at the drop of the hat without any reason/ jurisdiction.

30. The court on the very first date, must satisfy itself that consent is not obtained for divorce by force, fraud or undue influence and must reveal it in order of court. (vide: Sushama v. Pramod18).

31. In the present matter on the second day of hearing both the parties were present and separately they made a categorical statement that within four days of their solemnisation of marriage they departed and even the marriage has not been consummated. Both are literate and decided with full conscious mind that they have to be separated. We have also tried to get an impression whether the said statement is with free will or not. They had no hesitation in responding that there is no force, fraud or undue influence while reaching to such decision.

32. Considering the facts and circumstances of the case, we are of the view that 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. In the present matter the wife remained in her matrimonial house only for four days and for more than one year they are living separately. The marriage has never been consummated. They also make statement before the Court that they do not want to live together and there is no chance of reconciliation and the waiting period will only prolong their agony. They have made statement that they have better future prospects if divorce is allowed.

33. In view of the above and keeping in mind the legal position, we are of the considered opinion that learned Incharge Principal Judge, Family Court rejected the application 17/C without considering the facts of the case as well as law laid down by the Apex Court, therefore, the order impugned is set aside. The application 17/C is allowed. The present first appeal allowed accordingly. Learned Principal Judge, Family Court is directed to decide the Original Suit No. 592 of 2020 expeditiously or preferably within 7 days after producing the computerized copy of this judgment.

34. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the appellant/respondent along with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

35. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 10.02.2021 SP/ (Sanjay Kumar Pachori) (Mahesh Chandra Tripathi, J)