Allahabad High Court
Manisha vs Twinkal Prasad Gupta on 19 December, 2023
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:240115-DB Court No. - 39 Case :- FIRST APPEAL No. - 1356 of 2023 Appellant :- Manisha Respondent :- Twinkal Prasad Gupta Counsel for Appellant :- Rakesh Chandra Hon'ble Saumitra Dayal Singh,J.
Hon'ble Shiv Shanker Prasad,J.
1. Heard Shri Rakesh Chandra Tiwari, learned counsel for the appellant and Shri Brijesh Tiwari, learned counsel for the respondent.
2. Present appeal has been filed under Section 19 of the Family Courts Act, 1984. It is directed against the order dated 08.11.2023 whereby learned Principal Judge, Family Court, Sonebhadra, has rejected the application paper no. 9 'Ga' dated 8.11.2023 in Miscellaneous Case No. 367 of 2023, Manisha vs. Twinkal Prasad Gupta, whereby the parties sought waiver of six months to proceed in the divorce matter.
3. Learned court below has noted the fact that the marriage between the parties took place on 15.04.2017. Two children aged about two and three years are born to them. Certain discrepancies were noted in the disclosure made by the parties. Against disclosure of two years of separate living described in the plaint, in their affidavit seeking waiver/expeditious hearing, it was described as three years. Ostensibly to safeguard the best interest of the children, learned court below has refused to expedite the proceeding.
4. However, it is not disputed that the joint petition was filed by the parties under Section 13B of the Hindu Marriage Act, 1955, on 27.9.2023. Almost three months have passed. The parties have not changed their mind. At the same time, by means of paragraphs 13 & 14 of the affidavit filed in support of the present appeal, the appellant has disclosed further development of her second marriage having been fixed for the month of January 2024. Whether that marriage is solemnized in the next month or later, it cannot be denied, at this stage, the parties have entered into a settlement where under they have agreed to dissolve their marriage and part ways. As to the interest of their children, further settlement appears to have been reached to provide for term deposits of specified amounts.
5. As noted by the learned court below, the cooling period of six months is not mandatory. It may be waived of, in the peculiar facts and circumstances of a case. Here, besides the disclosures made by the parties before the learned court below in view of the further facts discussed to this Court, the parties have not only sought to dissolve the marriage but also, at present, the appellant is seeking a second chance in her second marriage after dissolution of first marriage. We see, no useful purpose would be served by delaying the proceedings by another three months. Here, it may be emphasized even according to the reasoning of the learned court below, there is no fundamental defect in the proceedings. Whether the parties have lived separately for two or three years, would make no material difference. They are seen to be separated enough to move away from the bonds of matrimony that may have tended to keep them together. Once the appellant is seeking a second chance in her second marriage due to be solemnized next month, no useful purpose would be served in keeping the said proceeding pending, on a courts desire to make parties rethink the issue. The respondent has reconciled to the fact that the appellant will perform re-marriage.
6. In Vijay Agarwal Vs. Smt. Suchita Bansal, 2023 (8) ADJ 484, this Court has observed as under :
"4. The issue involved is no longer res integra. In Amardeep Singh Vs. Harveen Kaur (2017), 8 SCC 746, it was held as below :
"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 13B (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 13B(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 32A 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 13B(2) is not mandatory but directory, 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."
5. That principle of law laid down by the Supreme Court has not been departed from, in any subsequent or other decision of that Court.
6. After considering the provisions of law, the Supreme Court had thus clarified that though the provision of Section 13B(2) postulates a cooling period of six months, that stipulation of time was not mandatory. Not only the provision stipulating six months' time period was held to be directory, further, the Supreme Court held that the discretion to waive that stipulation of time would vest in the Court dealing with the second motion petition. The intent of the decision of the Supreme Court and the interpretation of the law made by it are clear as daylight. Once the Supreme Court observed that the stipulation of time was directory and that the discretion to waive it may be exercised in the individual facts and circumstances of each case, by the Court, clearly, it had left no manner of doubt to arise with any party, less so the Court itself, as to who may exercise the discretion.
7. Insofar as the Supreme Court interpreted the statutory provision and laid down the law, that decision of the Supreme Court may never have been described as an exercise referable to Article 142 of the Constitution of India.
8. Article 142 of the Constitution of India enables the Supreme Court to do complete justice in the facts of any case. However, by very nature of that power, whenever exercised, that Court never seeks to lay down any proposition or principle of law. Here, to the contrary, the Supreme Court laid down the law in no uncertain terms. It took note of the statutory provision contained under Section 13B of the Act, 1955 and interpreted it to reach the conclusion that the same was directory and that the discretion to waive the stipulation of time would vest with the Court dealing with the second joint motion petition, seeking to dissolve the marriage between those parties."
7. For the reasons contained above, the present appeal is allowed. The order dated 08.11.2023 is set aside. The cooling period is waived. The parties are at liberty to proceed with the second motion proceeding at the earliest. Subject to the parties filing a copy of this order before the learned court below within a period of one week from today, it is hoped, second motion proceedings would be completed, as expeditiously as possible, preferably within a period of fifteen days therefrom.
Order Date :- 19.12.2023 Prakhar (Shiv Shanker Prasad, J.) (S.D. Singh, J.)