Allahabad High Court
Praveen Nath vs Principal Judge Family Court No. 4 ... on 21 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 18 Case :- MATTERS UNDER ARTICLE 227 No. - 7463 of 2019 Petitioner :- Praveen Nath Respondent :- Principal Judge Family Court No. 4 Kanpur Nagar And Another Counsel for Petitioner :- Shikher Trivedi Hon'ble J.J. Munir,J.
This petition has been filed to advance the date fixed in Case No.2120 of 2019 and further to decide the application dated 13.09.2019, expeditiously within a stipulated period of time. The direction is sought to be issued to the Principal Judge, Family Court No.4, Kanpur Nagar. Briefly put the facts of the case are that the petitioner and respondent No.2 are husband and wife. The husband filed for divorce under Section 13A, Hindu Marriage Act. Lateron, the parties were referred to mediation but the mediation failed. It appears that an application for divorce by mutual consent was moved on behalf of both the parties before the Court of Principal Judge, Family Court No.4, Kanpur Nagar, which was numbered as Case No.2120 of 2019.
It is the said petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, of which the petitioner seeks an early decision after advancing the date already fixed, and waiving the statutory period of six months prescribed under the Statute. Learned counsel for the petitioner has relied upon a decision of their Lordships of the Supreme Court in Amardeep Singh Vs. Harveen Kaur, (2017) 8 SCC 746. In the said decision, in paragraphs 19 and 20 of the report, it has been held as under:
"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 13B(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 concerned Court.
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."
In view of the order that this Court proposes to pass, no notice is being issued to respondent No.2, as no rights of parties are being determined hereby. However, in case the respondent No.2 has any grievance, it will be open to him to make an application in the decided petition.
Looking to the said facts, the application date 13.09.2019, a copy of which is annexed as Annexure-2 to the writ petition, shall be taken up after notice to respondent No.2 by the Principal Judge, Family Court No.4, Kanpur Nagar, within 15 days of production of a certified copy of this order and appropriate orders will be passed on the said application and dependent upon those orders and on the stand of parties in support of the second motion in the petition under Section 13B of the Hindu Marriage Act, bearing Case No.2120 of 2019, expeditiously.
The petition stands disposed of in terms of the aforesaid orders.
No order as to costs.
Order Date :- 21.10.2019 NSC