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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF OCTOBER, 2018
BEFORE
THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NOs.41451-452/2018 (GM-FC)
BETWEEN:
1. Sri Charan S
S/o Srinivas Murthy
Aged about 31 years
R/at No.63/5 Chakira Nilaya
4th Main, Near BEML Hospital
G.M.Palya, Jeevanbhimanagar
Bengaluru – 560 075
2. Smt. Vani S
W/o Charan S
Aged about 27 years
R/at No.A-54, 5th Block
BEML Township
New Thippasandra P.O.
Bengaluru – 560 075 …Petitioners
(By Smt. Champoo Kavya S, Advocate for
M/s Sastry Co., Advocates)
AND:
Nil … Respondent/s
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India, praying to set-aside the
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impugned order dated 25.08.2018 at Annexure-A in an
Interim Application under Section 151 of the Civil
Procedure Code 1908 passed in MC No.3931/2018 pending
before the IV Additional Principal Judge, Family Court at
Bengaluru and dispense with the waiting period of six
months.
These Writ petitions coming on for Preliminary
Hearing this day, the Court made the following:-
ORDER
Heard learned counsel for the petitioners.
2. Petitioners state that they are husband and
wife respectively, who were married as per Hindu rites and
customs on 21.08.2016 at BEML Kalyana Mandira,
Bengaluru-560 075. According to the petitioners, their
marriage has not been consummated and they have
severed their marital status and ties from the very day of
their marriage on account of incompatibility. The
petitioners ultimately filed a petition seeking divorce by
mutual consent under Section 13(B) of the Hindu Marriage
Act, 1955 (hereinafter referred to as ‘Act’ for the sake of
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convenience) in MC No.3931/2018. Along with the said
petition, they filed an application under Section 13B(2) of
the Hindu Marriage Act, 1955 read with Section 151 of the
Code of Civil Procedure, 1908 seeking to dispense with the
statutory waiting period of six months and to order for
dissolution of their marriage by a decree to be passed
under Section 13B of the Act. The IV Additional Principal
Judge, Family Court, Bengaluru, by order dated
25.08.2018 has however rejected the said application.
Being aggrieved by the said order, the petitioners have
filed this writ petition.
3. I have heard learned counsel for the
petitioners.
4. She submits that the Family Court has not
appreciated the reasons as to why they are seeking to
dispense with the statutory period under Section 13B(2) of
the Act. She submits that right from the date of their
marriage, the parties have not lived together. Their
marriage has not been consummated. There is no scope of
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re-union, the parties are residing separately from the date
of marriage i.e., from 21.08.2016 and thereafter on
21.07.2018, they decided to file a petition seeking divorce
by mutual consent. That in such circumstances, the
statutory waiting period under Section 13B(2) is irrelevant,
since even from the very inception of their marriage, there
has been no meeting of minds of the parties owing to
incompatibility between them. That in fact demonstrates
there is no marital relationship between them. That the
Hon’ble Supreme Court in the case of AMARDEEP SINGH
VS. HARVEEN KAUR reported in (2017)8 SCC 746)
has opined that the statutory waiting period in such cases
is wholly irrelevant and therefore, applying the said
judgment, the Family Court ought to have waived the
statutory period under Section 13B(2) of the Act and
granted divorce by mutual consent to the petitioners.
5. Learned counsel for the petitioners submits
that this Court may consider the case of petitioners and on
the basis of the judgment of the Hon’ble Supreme Court in
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the case of AMARDEEP SINGH VS. HARVEEN KAUR
and direct the Family Court to order for divorce by mutual
consent by dispensing with the statutory, cooling off period
of waiting under Section 13B(2) of the Act.
6. I have considered the submission made by the
learned counsel for the petitioners in the light of the
pleadings on record, particularly, the application made by
the petitioners along with their memorandum of divorce
petition by mutual consent and in light of the judgment of
the Hon’ble Supreme Court in AMARDEEP SINGH VS.
HARVEEN KAUR. In para 16 of the said Judgment, the
Hon’ble Supreme Court has stated as under:
“The object of the cooling off 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
6fresh rehabilitation, the Court should not be
powerless in enabling the parties to have a
better option.
7. Placing reliance on the aforesaid observations,
learned counsel for the petitioners contended that the
petitioners have categorically averred in their application
that the marriage between the parties is only informal and
bereft of any substance. That the parties have not lived
together, the marriage is not consummated due to
incompatibility right from the first day of the marriage. In
the circumstances, petitioners have sought for dispensing
with six months statutory waiting period under Section
13B(2) of the Act.
8. Having regard to the facts of the case and by
applying the dictum of the Hon’ble Supreme Court, I am of
the opinion that the trial Court ought to have considered
the case of the petitioners and allowed their application as
it is apparent that there is no chances of re-union or
reconciliation between the parties and therefore allowed
the said application.
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In the circumstances, impugned order dated
25.08.2018 at Annexure-A is quashed. The petitioners are
at liberty to seek appropriate orders by advancing the case
before the Family Court and seek dissolution of their
marriage by mutual consent.
Writ petitions are disposed off in the aforesaid
terms.
Sd/-
JUDGE
KMV/-
