Gujarat High Court
Maulin vs Riddhi on 1 July, 2011
Author: K.S.Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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SCA/4877/2011 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4877 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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MAULIN
GIRISHCHANDRA PANDYA - Petitioner(s)
Versus
RIDDHI
W/O MAULIN G PANDYA AND D/O MAHENDRA SHANTILAL BHATT - Respondent(s)
=========================================================
Appearance
:
MR
DAIFRAZ HAVEWALLA for
Petitioner(s) : 1,
MR YOGESH G DEV for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 22/04/2011
ORAL
JUDGMENT
1. Heard learned advocate for the parties. The parties are present before the court today. Before proceeding with the matter, an endevour was made by this Court to settle the disputes between the parties for reunion. However, the same failed. Hence, this matter is taken up for hearing at their joint request.
2. This petition is directed against the order dated 13.04.2011passed by the Family Court, Ahmedabad below Ex. 6 in Hindu Marriage Petition No. 224 of 2011 wherein the learned Judge has rejected the application for waiving off statutory period of six months before passing the decree of divorce.
3. The facts of the case, in brief, are that the marriage of the petitioner and respondent was solemnized on 11.12.2006 at Ahmedabad. It is the case of the petitioner that after marriage as the marriage life was not going happily and as the respondent-wife was not discharging her matrimonial obligation, the petitioner preferred Hindu Marriage Petition No. 225 of 2009 before the learned Family Court, Ahmedabad under Section 13(1) of the Hindu Marriage Act for decree of divorce. The respondent appeared through her advocate. As both the petitioner and respondent were mutually agreed for divorce, they gave a joint application under Section 13B of the Hindu Marriage Act which came to be numbered as H.M.P. No. 224 of 2011. HMP No. 225 of 2009 was therefore withdrawn. In HMP No. 224/2011, the parties by way of application Ex. 6 sought waiver of the statutory period of six months before passing of the decree of divorce. The learned Judge vide order dated 13.04.2011 rejected the application given below Exh. 6 in H.M.P. No. 224 of 2011. Hence, this petition.
4. Learned advocate for the petitioner submitted that when the petitioner and respondent are mutually ready to take divorce and they are residing separately their application ought to have been granted. He submitted that the when the main application being HMP No. 225 of 2009 is pending before the Court it was always open for the Court to grant relief considering the fact that more than two years have already been filed.
5. Learned advocate for the petitioner has relied upon the decision of this Court in case of Jyoitiben D/o Madhukant Manilal Oza versus Jigneshbhai Jaisukhbhai Oza reported in 2000 (4) GLR 3522 to support the above contention.
6. The respondent stated that she does not want to live with the petitioner-husband and she desires to take divorce. An affidavit to the said effect has been filed wherein it is pointed out that the issue of permanent alimony has been taken care of and that the statutory period of six months may be waived.
7. I have heard and considered the submissions of the learned advocate for the parties. Both the petitioner and respondent have been residing separately since 20.12.2007. Therefore, they have mutually agreed for decree of divorce and it appears that all the efforts for reconciliation have failed. Ordinarily such petition has to be filed before the court below and more so when the divorce petition is pending between the parties before the said court. At this stage it would be advantageous to refer to the observations made in the case of Jyotiben D/o Madhukant Manilal Oza (supra). Paragraphs 9, 10 and 11 read as under:
"9. Ordinarily such petition has to be filed before the court below and more so when the divorce petition is pending between the parties before the said court. In case where the matter is pending before this court arising out of the divorce petition, if the party desirous of settling their disputes and filed an application for dissolution of marriage by decree of divorce by mutual consent, the court should relegate them to the trial court. However, in some exceptional cases, the court may order for dissolution of marriage by decree of divorce by mutual consent on joint application filed by the parties to the litigation. The record of the trial court of the Hindu Marriage Petition has been called for and which is before this Court. Both the parties through their advocate prayed for passing of the decree by this court in this proceeding for dissolution of their marriage by decree of divorce by consent. The reasons have been given that the litigation now in the courts heavily costs to the parties and in case they are relegated to the trial court for this petition to be filed and that court has to pass the decree, there is all possibility that they have to incur further litigation expenses and secondly, the Court may not dispense with the requirement of waiting period to be followed before decree of divorce is granted as provided under subsection (2) of section 13 of the Act, 1955. It has next been submitted by the parties through their counsel that it is only a formality in the form and not of the substance.
When the matter is pending before this 'court and the file of divorce petition is also in this court, what for these parties should be] relegated to the District court and it may not be in the larger interest of parties themselves also. It is only a case where it may be a matter of form but in imparting justice, the approach of the courts should be to see that the parties are not unnecessary put to inconvenience or are being subjected to further more heavy expense of litigation as well as more time to be consumed by the court before the matter is finally decided. I find sufficient merits in the contention of the learned counsel for the parties and prayer made by the parties themselves. It appears to be a matter of form than substance. When the file is before this court of the trial court and when the provisions of subsection 2 of section 13-B of the Act, 1955 are not imperative, I fail to see what useful purpose would be served or there may be any technical legal requirement of sending the parties to the trial court for getting the marriage dissolved by decree of divorce by mutual consent. In appropriate case, this course could have been adopted. One of the reasons for adopting this course may be that some time the parties may have taken the decision abruptly and in hurry and the court may consider that some reasonable time may be given to them to reconsider their decision and to give rethought to the matter. For this purpose also, I fail to see why the parties should be relegated in each and every case to the trial court. This can also be possible here by passing of the order on the joint application filed by the parties under section 13-B of the Act, 1955. In this case, as stated earlier, the parties have finally decided their disputes and they have no plan whatsoever in their mind to give second thought or reconsider their decision. From the conduct of the parties which I have seen through these proceedings as well as after talking to them there appears to be no chance of their reunion, to live together as husband and wife and to continue their marital life. This inference is clearly supported from the fact that along with the terms of settlement, the husband has come up with the draft of the amount of permanent alimony and that has been accepted by the wife. This decision cannot be taken to be in hurry or abruptly. It appears to be taken after due deliberation and consideration of all aspects of the matter. This court cannot be oblivious of the fact that the parties are living separately for last more than four years and this revision application itself is pending before this court for last more than 5 to 6 months. So in these facts and circumstances, I am of the considered opinion that it is not the case where the parties should be relegated to the trial court for getting their marriage dissolved by decree of divorce by mutual consent. All necessary ingredients to be fulfilled by the parties before their marriage is to be dissolved by decree of divorce by mutual consent, have been fulfilled in the present case. They have presented the petition jointly to this court. The parties are living separately for a period of more than a year before the presentation of the petition in this court. From the application as well as after talking to them it is clear that they have not been able to live together. They have mutually agreed that their marriage should be dissolved by decree of divorce by mutual consent. So taking into consideration the totality of the facts of this case, I am satisfied that this petition under section 13-B of the Act, 1955 deserves to be granted and accordingly it is granted.
10. In the result, the petition under section 13-B of the Act, 1955 jointly presented by the petitioner and respondent, husband and wife is allowed and their marriage solemnized on 20-2-1994 at Godhra according to Hindu rituals is hereby dissolved by decree of divorce by mutual consent. Registry is directed to draw the decree in this case forthwith.
11. In view of the fact that the marriage of the petitioner and the respondent has been dissolved by decree of divorce by mutual consent, the Hindu Marriage Petition No.277/94 now no more survives and in fact and substance it has become infructuous. Accordingly, the said petition is ordered to be dismissed as having become infructuous. As a result of the dismissal of H.M.P. No.277/94 as having become infructuous, this revision application has also become infructuous and the same is accordingly dismissed. Rule discharged. Interim relief, if any, granted by this court stands vacated."
8. As per the ratio laid in the aforesaid decision, the approach of the courts should be to see that the parties are not unnecessarily put to inconvenience or are being subjected to further more heavy expense of litigation as well as more time to be consumed by the court before the matter is finally decided. From the conduct of the parties which I have seen through these proceedings as well as after talking to them there appears to be no chance of their reunion, to live together as husband and wife and to continue their marital life. This court cannot be oblivious of the fact that the parties are living separately for last more than three years and the divorce proceedings under section 13(1) of the Hindu Marriage Act was filed in the year 2009. Hence in view of the fact that the said proceedings are pending for more than three years, the court below ought to have considered the same for waiving off the statutory period of six months. In these facts and circumstances, I am of the considered opinion that it is not a case where the parties should be relegated to the trial court for getting their marriage dissolved by decree of divorce by mutual consent by consuming further time. They have mutually agreed that their marriage should be dissolved by decree of divorce by mutual consent. So taking into consideration the totality of the facts of this case, more particularly, the fact that divorce petition has been pending for last two years, I am satisfied that this petition deserves to be granted and accordingly it is granted.
9. In the result, the order impugned in this petition is quashed and set aside. On the peculiar facts of the case, the statutory period of six months before passing the decree of divorce under section 13-B of the Hindu Marriage Act, 1955 is hereby waived. The petition under Section 13-B of the Act, 1955 jointly presented by the petitioner and respondent, husband and wife is allowed and their marriage solemnized on 11.12.2006 at Ahmedabad according to Hindu rituals is hereby dissolved by decree of divorce by mutual consent. Necessary consequential decree shall be drawn accordingly. Rule is made absolute with no order as to costs. Direct service is permitted.
(K.S.JHAVERI, J.) Divya// Top