Karnataka High Court
Nithesh Raj Acharya vs Smt Babitha on 4 September, 2018
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NO.33019/2018(GM-FC)
BETWEEN:
Nithesh Raj Acharya,
S/o. Ramachandra Acharya,
Aged 31 years,
R/at. Shabarigiri Nilaya,
Sadbhavana Nagara, Banglegudde,
Karkalla, Kasaba village,
P.O. Karakala - 574 104. ... PETITIONER
(By Sri. Sachin B.S., Advocate)
AND:
Smt. Babitha,
D/o. Padmanabha Acharya,
Aged about 24 years,
R/at. Shree Devi Kripa,
Seethangoli House,
Via - Kumble P.O. Ednad,
Kasaragod District,
Kerala - 671 321.
....RESPONDENT
(By Sri. Rajaram Sooryambail, Advocate.)
This writ petition is filed under Article 227 of the
Constitution of India praying to quash the impugned order
2
dtd. 08.06.2018 passed on IA No.2 filed by the petitioner
in MC No.38 of 2018 on the file of Senior Civil Judge and
ACJM, Karkal as per Annexure-A and consequently allow
the I.A.No.2 as prayed for.
This writ petition coming on for preliminary hearing
in `B' Group this day, the Court made the following;
ORDER
Though this writ petition is listed for preliminary hearing in 'B' group, with the consent of learned counsel on both sides, it is heard finally.
2.Petitioner is the husband who has assailed order dated 08/06/2018 passed on I.A. No.2 in M.C. No.38/2018 pending on the file of Senior Civil Judge and ACJM, Karkala (Annexure-A). By the said order, the application filed by the petitioner under Section 13B(2) of the Hindu Marriage Act, 1955 ( hereinafter referred to as the 'Act' for the sake of brevity) has been dismissed.
3. The brief facts of the case are that petitioner/husband and respondent/wife were married on 21/05/2017/. They resided together for a very brief period. 3 Owing to their incompatibility, they have resided separately. Thereafter, on 01/06/2018, petitioner and respondent have filed a petition under Section 13B of the Act, seeking dissolution of their marriage by a decree of divorce by mutual consent. Along with the petition, an application under Section 13B(2) of the Act was filed seeking dispensation of the waiting period of six months as stipulated under the said sub-section and for orders to be passed on the main petition. By the impugned order dated 08/06/2018, the said application has been rejected. Consequently, the trial Court has posted the matter to 05/12/2018. Being aggrieved by that order, husband has filed this petition.
4. I have heard learned counsel for petitioner/husband and learned counsel for respondent/wife and perused the material on record.
5. During the course of submission, learned counsel for the respective parties jointly drew my attention to the joint affidavit filed by them before the trial Court in 4 support of the application filed by them under Section 13B(2) of the Act.
6. Petitioner's counsel contended that petitioner intends to get married again and that proposals are waiting for his response. Respondent has stated that she intends to go to abroad in search of better prospects and therefore the cooling off period of six months stipulated under sub-Section (2) of Section 13B may be waived.
7. Learned counsel for the respective parties also drew my attention to the decisions of the Hon'ble Apex Court in the case of Nikhil Kumar v. Rupali Kumar, reported in LAWS (SC) 2016 447 2017(8) SCC 746 and contended that the Hon'ble Supreme Court has held that the stipulated period of six months could be waived, having regard to the facts and circumstances of a particular case. They have also drawn my attention to the latest decision of the Hon'ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur reported in 2017(8) SCC 746, wherein it has been held that the cooling period under Section 13B is only a directory condition and that 5 the same may be waived, having regard to the facts and circumstances of a particular case. Therefore, they contended that this Court may quash the impugned order and direct the trial court to pass orders on the main petition without insisting on the waiting period of six months under Section 13B(2) of the Act.
8. Having heard learned counsel for the respective parties and on a perusal of the recent judgment of the Hon'ble Supreme Court in the case of Amardeep Singh, it is noted that the question which arose in that case was whether the period in a petition stipulated under Section 13B(2) of the Act, for passing a decree of divorce on the basis of the mutual consent was mandatory or could be relaxed in exceptional situations. Having considered a catena of cases wherein such a condition was waived by invoking Article 142 of the Constitution of India, the Hon'ble Supreme Court considered the object and purpose of Section 13B(2) and in light of the reasons seeking for waiver of such a period and has held that the statutory 6 period mentioned under Section 13B(2) is not mandatory but directory and it is 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. Having regard to the recent dictum of the Hon'ble Supreme Court, it is noted that the discretion would have to be exercised in each case having regard to the facts and circumstances of the case and that six months waiting period mentioned in sub-section(2) of Section 13B is not a mandatory requirement but a directory one which could be relaxed.
9. In the instant case, it is noted that petitioner/ husband and his wife the respondent have jointly sought waiver of the waiting period of six months by stating their reasons in their joint affidavit filed along with the application seeking waiver of the period of six months filed under Section 13B of the Act. They have stated that due to complete incompatibility between them, they have not 7 been able to live together as husband and wife and that they have been residing separately for a period of one year and that there is no possibility of reunion. That petitioner/husband intends to marry again and there are proposals waiting for him and that the respondent has to go to abroad for better prospects . Therefore, they have stated that they would suffer hardship, if the petition is to be adjourned by six months and thereafter to be considered.
10. Having regard to the facts and circumstances which emerges in this matter and the reasons assigned by the parties for seeking waiver of statutory period of six months, I am of the opinion that on the facts and circumstances of the present case, six months waiting period would have to be waived.
11. In the circumstances, the impugned order dated 08/06/2018 is quashed. The trial Court is directed to dispose of the main petition filed under Section 13B(1) of 8 the Act, in an expeditious manner and in accordance with law.
12. Since the parties are represented by their respective counsel, they are directed to appear before the trial Court on 24/09/2018, so as to enable the Trial Court to dispose off the matter in accordance with law.
Petition accordingly stands disposed off.
Sd/-
JUDGE Msu