Allahabad High Court
Suvir Gupta vs Dr. Richa Srivastava on 9 December, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:192071-DB Court No. - 39 Case :- FIRST APPEAL No. - 1119 of 2024 Appellant :- Suvir Gupta Respondent :- Dr. Richa Srivastava Counsel for Appellant :- Sujan Singh Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Shri Sujan Singh, learned counsel for the appellant and Shri Mukesh Kumar Mishra, learned counsel for the respondent. Shri Mukesh Kumar Mishra has filed appearance, today.
2. Present appeal has been filed under Section 19 of the Family Courts Act, 1984, arising from the order dated 14.10.2024 passed by learned Principal Judge, Family Court, Agra, in Case No. 2738 of 2024 (Dr. Richa Srivastava v. Suvir Gupta), whereby the learned court below has rejected the application moved by the parties under Section 13B(2) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'H.M.A.') seeking waiver of the cooling off period between first and second motion of a petition filed under Section 13B of the H.M.A.
3. After discussing the law laid down by the Supreme Court, the learned court below has primarily reasoned that waiver of cooling off period is a power referable to Article 142 of the Constitution of India. Thus, according to the learned court below such waiver may be granted only by the Supreme Court in particular facts of the case, to do complete justice. In that regard, learned court below has observed as below :
"In the facts and circumstances of this Case, it is not appropriate for this Court to waive the statutory period of six months as provided u/S, 13-B (2) of the Hindu Marrige Act, 1955 before completing the mediation/conciliation efforts as provided u/S 23(2) of Hindu Marriage Act. This Court is also not competent to pass an order as grounds provided by the Hon'ble Supreme Court in Anil Kumar Jain Vs. Maya Jain (Supra). It is also expedient to mention here that only reason mention which has mentioned in his application is that Dr. Suvir Gupta wants to travel foreign country regarding their training programme but period of training programme has not been mentioned by the applicant. The marriage of applicants is 25 years old so that without taking efforts regarding their re-union as provided u/S 23(2) Hindu Marriage Act and waive of the cooling period as provided in the statute is not expedient in the interest of justice.
Thus, instant application is rejected hereby."
4. On facts, it is not in dispute that the parties solemnised their marriage on 22.01.1999. Two children were born to them in the years 2001 and 2007, respectively. After 18 years of married life, the parties separated in April, 2017. They have been living separately for the last 7 years. Both children are living in the custody of the respondent. There is no dispute between the parties with respect to their custody. In such circumstances, on 04.10.2024, the parties found amicable settlement to dissolve their marriage. Both parties are medical doctors. All efforts made to revive their marriage have failed. In such circumstances, they seek a peaceful solution such that their marriage may be dissolved. There are no surviving or other claims. Parties are also agreed to withdraw all cases lodged against the other. It is a case of irretrievable break down of marriage. Therefore, in the best interest of their children, parties are agreed to dissolve their marriage.
5. Insofar as the law is concerned, it is also not in dispute that irretrievable break down of marriage, is not a statutory ground of appeal available to one-spouse to seek dissolution of marriage, if the other is not agreed. At the same time, such ground is permitted to arise in consented proceeding or a proceeding for divorce on mutual consent under Section 13B of the H.M.A. Once section 13B proceeding is instituted, it is not for the Court to consider the merits. It has to ascertain if both parties agreed and seek dissolution of their marriage. As to the waiver of cooling off period, the law laid down by the Supreme Court in Amardeep Singh Vs. Harveen Kaur (2017) 8 SCC 746, is not an order referable to Article 142 of the Constitution of India. Rather, it is the law laid down under under Article 141 of the Constitution of India. This Court had the occasion to consider the same issue in Vijay Agarwal vs. Suchita Bansal; 2023 8 ADJ 484, wherein it was observed as below :
"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 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 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 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 circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation."
6. Seen in that light, the learned court below has completely erred in entertaining a doubt that irretrievable break down of marriage is not a statutory ground on which a proceeding under Section 13B of H.M.A. may have been entertained or allowed. Clearly, upon consent of parties, such ground does become available. In absence of any malafide or other disability earned by the parties, the issue is not justiciable at the instance of the Family Court.
7. Second, as to the waiver of cooling off period as considered in Vijay Agarwal (supra), clearly the learned court below has jurisdiction to grant such waiver.
8. In the present case, parties appear to have reached a settlement after 7 years of separation suffered. Both parties are mature inasmuch as their marriage is 25 years old. Both are practitioners of modern medicine. As to their children, one is 23 years of age and the other has almost attained the age of majority. Separation offered is longer than statutorily contemplated. No possibility of revival of marriage exists in the facts noted above. No dispute survives.
9. In view of such facts, the impugned order cannot be sustained. It is set aside. The appeal is allowed. Waiver prayed for is granted. Let second motion of the divorce petition be concluded within a period of one month from the date a copy of this order is produced before the learned court below.
Order Date :- 9.12.2024
SA
(Donadi Ramesh, J.) (S.D. Singh, J.)