Madhya Pradesh High Court
Surendra Singh vs Smt. Amnmeet Kour on 10 July, 2019
Equivalent citations: AIRONLINE 2019 MP 1690
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THE HIGH COURT OF MADHYA PRADESH
M.P. No.3360/2019
(Surendra Singh vs. Smt. Manmeet Kour)
Gwalior, Dated : 10.07.2019
Shri S.S. Rawat, counsel for the petitioner.
Ms. Yashodhara Uniya, counsel for the respondent.
The present petition has been filed challenging the order dated 22.06.2019 passed by the Principal Judge (Link Family Court Gwalior) in Case No.104-A/19 HMA wherein the Hon'ble Court has dismissed the application filed by the petitioner for waiving of six months cooling period and the case has been fixed on 31.10.2019.
It is submitted by the counsel for the petitioner that though case been filed under Section 13 (B) HMA for divorce with mutual consent and both the parties have given their statements before the court wherein they have specifically narrated that they are living separately for last three years and all efforts of mediation and reconciliation have been tried but all failed and there are no chances of reconciliation, but without considering this aspect and statements, the trial Court has rejected the application and has placed the matter on 31.10.2019 for recording of final statements. The petitioner has submitted that while passing the impugned order the Court below has not taken into consideration the principles laid down by the Hon'ble Supreme Court in the case of Amardeep Singh Vs. Harveer Kaur reported in 2017(8) SCC746, wherein the Hon'ble Supreme Court has stated that the period of six months is discretionary and the courts are having powers to relax the same 2 THE HIGH COURT OF MADHYA PRADESH M.P. No.3360/2019 (Surendra Singh vs. Smt. Manmeet Kour) taking into consideration the facts and circumstances of the cases. He has further relied upon the order passed by this Court in M.P. No.2418/2018 decided on 10.05.2018 and accordingly has prayed for setting aside of the order with a further direction to the trial Court to record the statements by relaxing the cooling period of six months at an early date.
The respondent's counsel has no objection to the aforesaid and she also prays for disposal of the misc. petition with the aforesaid direction.
Heard the learned counsel for the parties and perused the record.
It is not in dispute that an application under Section 13(B) of the Hindu Marriage Act, 1955 has been filed seeking decree of divorce by mutual consent. They have also recorded their depositions before the Family Court.
From the perusal of the statements, it is clear that they are residing separately since January 2016 and there are no chances of reconciliation and accordingly have prayed for decree of divorce by mutual consent. The permanent ailmony has also been reflected in the statement. The learned Family Court has dismissed the application on the ground that he finds no reason for relaxing of cooling period of six months and has fixed the case for recording of statements on 31.10.2019. The learned trial Court has failed to 3 THE HIGH COURT OF MADHYA PRADESH M.P. No.3360/2019 (Surendra Singh vs. Smt. Manmeet Kour) consider the principles laid down by the Hon'ble Supreme Court in the case of Amardeep Singh (supra) and has passed the impugned order which is unsustainable and deserves to be set aside.
The Hon'ble Apex Court in the case of Amardeep Singh (Supra) has dealt with the controversy and earlier decisions of the Apex Court and while reconciling the conflicting views, have given the mandate wherein the Apex Court has directed that concerned Court to exercise their discretion in the facts and circumstances of the each case, where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. The Court has considered the following questions:
i) How long parties have been married?
ii) How long litigation is pending?
iii) How long they have been staying apart?
iv) Are there any other proceedings between the parties?
v) have the parties attended mediation/conciliation?
vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
According to mandate of the Apex Court, the waiver application can be filed one week after the first motion giving reasons for the prayer for waiver and if the condition referred above are satisfied, the waiver of the waiting period for the second motion 4 THE HIGH COURT OF MADHYA PRADESH M.P. No.3360/2019 (Surendra Singh vs. Smt. Manmeet Kour) will be in the discretion of the concerned Court.
Thus, it is clear that the Court must be satisfied about the separate living of the parties for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and it is to be seen that further waiting period will only prolong their agony. If these conditions are satisfied then the Court has discretion to waive the waiting period of six months for the second motion.
The Court can also use the medium of video conferencing and can also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reasons as may satisfy the Court, to advance the interest of justice. Thus, trial Court has vide discretion to take a call in view of said annunciation of law.
With the time, mindsets also need updation and same is true with the perspective of an Institution.
Therefore, if both the parties intend to severe nuptial bonds on their own volition because of non-compatibility and to move on in their respective lives, then it is the duty of the Court to look into such aspects and thereafter take a decision accordingly.
In the present case the learned trial Court has failed to consider the aforesaid aspect of the Hon'ble Supreme Court and has outrightly rejected the application.
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THE HIGH COURT OF MADHYA PRADESH M.P. No.3360/2019 (Surendra Singh vs. Smt. Manmeet Kour) Considering the facts and circumstances of the case, the order impugned is modified and the matter is remitted back to the trial Court for taking afresh call on the fact situation of the case and pass an order in respect of the prayer made by the parties jointly regarding waiving of six months period for getting divorce by mutual consent. The order impugned is modified to the extent that instead of parties giving their appearance on 31.10.2019 they are directed to appear before the concerning court on 18.7.2019 as they have consented for the same before this Court and on such date the court below will consider the application preferred jointly by the parties afresh keeping in mind the mandate issued by the Hon'ble Supreme Court in the case of Amardeep Singh (supra).
With the aforesaid observations, petition stands disposed of.
(Vishal Mishra) Judge van VANDANA VERMA 2019.07.13 17:06:14 +05'00'