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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP (227) No. 353 of 2018
Smt. Pooja Purohit W/o Sumer Purohit Aged About 26 Years
D/o Sanjay Sharma, Aged About 26 Years, R/o Near Raipur
Convent School Sector , Shivanand Nagar Khamtarai, Raipur
Tahsil District Raipur Chhattisgarh. — Petitioner
Versus
Sumer Purohit S/o Madanlal Purohit Aged About 33 Years R/o
Behind Gurudwara, Station Road, Lodhipara, Raipur Tahsil
District Raipur Chhattisgarh. — Respondent
For the Petitioner : Mr. Saurabh Sharma, Advocate.
For the Respondent : Mr. Neeraj Choubey, Advocate
HON’BLE SHRI JUSTICE GOUTAM BHADURI
C.A.V. JUDGMENT / ORDER
(Reserved on 23.04.2018)
(Pronounced on .05.2018)
1. The present petition is against the order dated 02.04.2018
passed by the Principal Judge, Family Court,Raipur in Civil
Suit No.113/2018 (Sumer Purohit Vs. Smt. Pooja Purohit)
whereby the application jointly preferred by both the parties
for reduction/relaxation of cooling-off period of six months
as provided u/s 13-B(2) of Hindu Marriage Act has been
dismissed.
2. Briefly stated facts of the case are that defendant wife Pooja
Purohit was married to plaintiff Sumer Purohit on 01.02.2017.
it is the case of the parties that after the marriage, they
could not go long so as to continue with the marital
relationship and they started living separately since
04.02.2017. Thereafter, on 05.02.2018 both the parties i.e.,
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husband and wife had jointly filed a petition u/s 13-B of the
Hindu Marriage Act seeking divorce by mutual consent. After
filing of the petition on 06.02.2018, the learned court below
had given the next date of hearing as 26.3.2018 for
mediation and counseling. The efforts by mediation and
counseling had failed and eventually the next date of
hearing was given on 07.08.2018. In the meanwhile, an
application has been jointly filed by the husband and wife
on 02.04.2018 to reduce and relax the cooling-off period of
six months.
3. The learned court below has dismissed the said application
on the ground that since the parties have stated that they
want to remarry, as such it was felt that the petition to relax
the cooling-off period of six months was filed with an ulterior
motive and in collusion with the parties.
4. Learned counsel for the petitioner as also learned counsel for
the respondent both have submitted that both the parties
are living separately since 04.02.2017 i.e., just after 3 days
of the marriage and the efforts of conciliation proceedings
have also failed and as such the marriage between the
parties has irretrievably broken down and there is no chance
of reunion. They placed reliance in a case law reported in
( 2017) 8 SCC 746 – Amardeep Singh Vs. Harveen
Kaur and submitted that under the circumstances, the
learned court below should have taken note of the fact that
both the parties i.e., husband and wife have jointly requested
to relax the cooling-off period of six months and accordingly
the application for relaxation of cooling of period of six
months ought to have been allowed.
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5. Perused the documents filed with the petition. The record
contains the application u/s 13-B of the Hindu Marriage Act,
1955. It is been stated that both the parties cannot go along
and after marriage they have only stayed for 2-3 days
together and due to certain difference of opinion, the relation
interse between the parties i.e., husband and wife is not
cordial. The petition further purports that all the Stree Dhan
settlement has been arrived between the parties and both of
them do not want to continue with their relations. The
record would further show that during the pendency of the
petition, an application was filed to waive the cooling-off
period of six months as contemplated u/s 13(B) of the Hindu
Marriage Act since both the parties i.e., husband and wife are
well educated and could not live with each other,
consequently the prayer to waive such period was made.
6. The order sheet would show that the application for mutual
divorce was filed on 05.02.2018, therefore, the cooling off
period of six months as stated in section 13-B would end on
04.08.2018. The application was filed for waiver of cooling-
off period of six months on 02.04.2018. In this context, the
text of section 13-B of Hindu Marriage Act would be relevant
here and quoted below:
“13-B. 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, 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
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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 period 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.”
7. The Supreme Court in a case law reported in (2017) 7 SCC
page 746 – Amardeep Singh Vs. Harveen Kaur has
held that in the year 1976, the concept of divorce by mutual
consent was introduced and 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 grant divorce by mutual
consent only if there is no chance for reconciliation. The
Supreme Court has further laid down the following principles
at para 19 :
“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
5including 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.”
8. Applying the aforesaid principles to the present case, the
facts would suggest that immediately after the marriage took
place on 01.02.2017, both the parties i.e., the husband and
wife have jointly applied for divorce by stating that they are
living separately since 04.02.2017 and the application for
mutual divorce was filed on 05.02.2018. The order sheets
also records the fact that the conciliation proceeding to
reunite the parties has failed on 26.03.2018 and after filing
of application on 05.02.2018, another application to waive
the period of six months was filed on 02.04.2018 wherein the
parties had stated that they could not go along with each
other and after the divorce they want to remarry. Therefore,
by all necessary implications, it goes to show that even after
rethinking, the parties have come to firm opinion and arrived
at a settlement that they cannot stay together and want the
divorce. As a natural consequence it can be said to be a fair
submission on the part of both the petitioner and respondent
that they want to remarry after decree of divorce. Having
stated so it further fortifies the intention to get separated
and the waiting period will only prolong their agony.
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9. Under the circumstances the order dated 02.04.2018 passed
by the Family Court Raipur is set aside. The application
jointly filed by the petitioner and the respondent to waive
the colling-off period of six months is allowed. The parties
shall appear before the family court on 18.05.2018 to
record their statements before the Court below and
thereafter the Court below shall adjudicate the same in
accordance with law.
10. In the result, the writ petition is allowed.
Sd/-
GOUTAM BHADURI
JUDGE
Rao
