Karnataka High Court
Sri Charan S vs Nil on 1 October, 2018
Equivalent citations: 2019 (1) AKR 285, (2019) 2 HINDULR 317 (2019) 2 KCCR 1494, (2019) 2 KCCR 1494
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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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 3 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 4 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 5 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 6 fresh 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/-