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Smt. Sunita Nankani vs Mahesh Nankani 25 Wpt/53/2016 M/S … on 19 June, 2018

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 4-5-2018

Delivered on 19-6-2018
FAM No. 58 of 2017
(Arising out of the judgment and decree dated 29-11-2016 of the
Judge, Family Court, Korba, in Civil Suit No. 18-A/2016)
Smt. Sunita Nankani W/o Shri Mahesh Nankani, R/o Near Sindhu
Bhawan, Sani Road, Korba, Tahsil and District Korba, CG, at
present R/o Flat No. 506, Muskan Plaza, Shatabdipuram,
Jabalpur M.P.
—- Appellant
Versus
Mahesh Nankani S/o Shri Kanhaiyya Lal Nankani, R/o House No.
T/48, Hospital Line, Camp Madhav Nagar, Katni, Tahsil and
District Katni, M.P.
—- Respondent

For appellant : Shri Vipin Punjabi Advocate
For respondent : Shri Ratnesh Kumar Agrawal, Advocate

Hon’ble Shri Thottathil B. Radhakrishnan, Chief Justice
Hon’ble Shri Sharad Kumar Gupta, Judge
C.A.V. ORDER
Per Sharad Kumar Gupta, Judge

1. In this appeal challenge is levied to the judgment and decree

dated 29-11-2016 of the Judge, Family Court, Korba, in Civil Suit

No. 18-A/2016 whereby and whereunder she dismissed the

appellant’s-wife’s divorce petition filed under Section 13 of the

Hindu Marriage Act, 1955 (in brevity ‘Act of 1955’) against the

respondent-husband.

2. In brief, case of the appellant is that her marriage was

solemnized with respondent on 24-2-1995 in accordance with

Hindu religion and customary rites and rituals at Katni, Madhya

Pradesh. In their wedlock two children have born namely
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Himanshu Nankani aged about 18 years and Kapil Nankani aged

about 15 years who are living with her. After the marriage the

respondent started harassing her.

3. The respondent remained exparte and did not file written

statement.

4. After conclusion of the trial, the trial Court passed aforesaid

judgment and decree. Being aggrieved, the appellant has

preferred this appeal.

5. During pendency of this appeal, the case was referred to the

High Court Mediation Centre where a settlement was arrived at

between the parties and both the parties were agreed that they

will file an application for divorce by mutual consent. In

furtherance thereof, both the parties have filed an application for

divorce by mutual consent on 27-4-2018.

6. It would be pertinent to mention the provisions of Section 13-B of

the Act of 1955 which reads as under:-

“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 solemnized 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 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
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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 solemnized 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. In the matter of Amardeep Singh -v- Harveen Kaur [(2017) 8

SCC 746], in para 19 and 20 the Hon’ble Apex Court held that :-

“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.

20. Since we are of the view that the period mentioned in
Section 13-B(2) is not mandatory but directory, it will be
open to the court to exercise its discretion in the facts and
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circumstances of each case where there is no possibility of
parties resuming cohabitation and there are chances of
alternative rehabilitation.”

8. From the above judicial precedent laid down in Amardeep Singh

(supra), it is unequivocal that provisions of Section 13-B(2) of the

Act of 1955 are directory in nature and Court may waive the six

months’ statutory waiting period considering the circumstances

as pointed out in above cited case law.

9. This Court has inquired both the parties. We are satisfied that

both the parties have filed the application voluntarily, without any

influence or pressure. They have been living separately for a

period of one year or more. They have not been able to live

together and they have mutually agreed that the marriage should

be dissolved. All efforts for mediation/conciliation have failed in

saving the marriage and there is no likelihood of success in that

direction by any further efforts. Parties have genuinely settled

their differences and have honestly and bonafidely decided to

part. The waiting period will only prolong their agony. We see a

strong case to waive the statutory period of six months under

Section 13-B(2) of the Act of 1955. Thus, this Court waives the

aforesaid waiting period of six months and orders that the

aforesaid marriage solemnized between the appellant and the

respondent is dissolved by the decree of divorce from today and

the respondent-husband shall pay the allowance for maintenance

at the rate of Rs. 10,000/- (Rs. Ten Thousand) per month to the

minor child Kapil Nankani through his guardian – mother the

appellant, till he attains majority from the date of filing of the

application i.e. 27-4-2018.

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10. The appeal is accordingly disposed of.

11.Parties shall bear their own costs.

12. A decree be drawn up accordingly.

Sd/- Sd/-
(Thottathil B. Radhakrishnan) (Sharad Kumar Gupta)
Chief Justice Judge

pathak

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