Karnataka High Court
Santosh Kumar Malipatil S/O Late Prabhu ... vs Nil on 23 March, 2023
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
-1-
WP No. 200998 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF MARCH, 2023
BEFORE
THE HON'BLE MS.JUSTICE JYOTI MULIMANI
WRIT PETITION NO.200998 OF 2023 (GM-FC)
BETWEEN:
1. SRI. SANTOSH KUMAR MALIPATIL
S/O LATE PRABHU RAO PATIL,
AGE: 44 YEARS,
OCC: SOFTWARE ENGINEER,
R/O. H.NO.4/48, BAGADAL,
TQ. AND DIST. BIDAR,
NOW AT BANK COLONY,
KEB ROAD, BIDAR - 585 401.
2. SMT. JAYASHREE
W/O SRI. SANTOSH KUMAR MALIPATIL,
(D/O SRI. SHIVAPPA MASKI),
AGE: 38 YEARS,
OCC: SOFTWARE ENGINEER,
Digitally signed by R/O. H.NO. 2-22-BRV/E807,
THEJASKUMAR N
Location: HIGH BHAVYAS TULSIVANAM,
COURT OF NAVODAYA COLONY,
KARNATAKA
KUKATPALLY MEDCHAL,
MALKAJGIRI,
TELANGANA - 500 072.
NOW AT AUSTIN TEXAS USA,
THROUGH SPA-HOLDER,
SRI. SHIVAPPA MASKI
S/O. LATE SRI SIDDAPPA MASKI,
AGED ABOUT 65 YEARS,
R/AT NO.336, MANUMAYA,
8TH CROSS, MCECHS LAYOUT,
-2-
WP No. 200998 of 2023
DR. SHIVARAM KARANT NAGAR,
R. K. HEGDE NAGAR,
BENGALURU - 560 077.
...PETITIONERS
(BY SRI.SUDARSHAN M., ADVOCATE)
AND:
NIL
...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Sri.Sudarshan.M., learned counsel for the petitioners has appeared in person.
2. The brief facts are these:
The Petitioners are husband and wife and their marriage was solemnized on 11.03.2012 at Sri Sangameshwar Kalyan Mantap, Sukshetra Kudalasangama, Hunagund Taluk, Bagalkot District as per the rituals of the Hindu Religion. They have a son who is named as Abhi aged about 10 years. He is studying in 4th Standard at Delhi Public School, Bengaluru and is under the care and custody of the second petitioner and her parents. -3- WP No. 200998 of 2023
It is said that they led a happy marital life for some time and due to differences in opinions and misunderstandings, they were constrained to take shelter under the Court of law seeking a divorce on mutual consent. Accordingly, they filed a petition under Section 13B of the Hindu Marriage Act, 1955 (for short 'the Act') on the file of the Principal Judge, Family Court, Bidar in M.C.No.29/2023. It is averred that both petitioners are living separately for more than Seven (7) years. The petitioners are before this Court because the Family Court, Bidar by the impugned order dated 21.02.2023 rejected their application in I.A.VI for waiver of the statutory period of six months.
It is averred that the first petitioner/husband is working as Software Engineer and presently residing in Hyderabad. Similarly, the second petitioner/wife is also working as Software Engineer and residing in the USA. It is the mutual consent of both the petitioners that their minor son Abhi should live with the second petitioner/wife and he should be taken care of with his educational career and other expenditures by the mother and mother only till he attains majority. It is said that both of them are having a common understanding between them and also having difficulty raising their minor son in India without his -4- WP No. 200998 of 2023 mother, as the second petitioner/wife/mother has now been employed and is residing in the USA. Accordingly, both the petitioners agreed to apply Section 13B (2) of the Act, seeking for waiving off cooling period for mutual divorce. In the application, they explained the difficulty in raising their minor son in India as the natural guardian mother/second petitioner is residing in the USA. It is also explained that the next Academic Year in the USA would commence in July-2023. In that view of the matter, there is grave urgency shown to the Family Court that the mother is unable to take her minor son to the USA without getting ready with the required Passport and VISA of her minor son at the earliest. It is also brought to the notice of the Court that the process of obtaining a VISA itself would take nearly three months to get it done. Hence, they sought for waiver of six months cooling period. But the Family Court without understanding and without proper appreciation of the facts of the natural bondage and sentiments of mother and son, rejected the application by order dated 21.02.2023. It is this order that is called into question in this Writ Petition on several grounds, as set out in the Memorandum of the Writ Petition. -5- WP No. 200998 of 2023
Learned counsel for the petitioners urged several contentions. Heard the contentions urged on behalf of the parties and perused the writ papers and Annexures with utmost care.
The following short and simple point would arise for my consideration:
"Whether the Family Court justified in
rejecting the application?"
3. Sri.Sudarshan.M., learned counsel for the
petitioners vehemently contended that the statutory period of six months contemplated under Section 13B (2) of the Act is only directory and not mandatory and in certain circumstances, it would be open to the Court to waive off the statutory period. However, the Family Court has rejected the application of the petitioners for waiving off the statutory period without considering the circumstances that are peculiar to the petitioners. Learned counsel drew the attention of this Court to the decision of the Hon'ble Apex Court in AMIT KUMAR VS. SUMAN BENIWAL reported in 2021 SCC Online SC 1270. -6- WP No. 200998 of 2023
He submitted that the Apex Court in paragraph 23 of the Judgment has observed as under:
"23. It is well settled that a judgment is a precedent for the issue of law that is raised and decided. A judgment is not to be read in the manner of a statute and construed with pedantic rigidity. In Amardeep Singh v.Harveen Kaur, this Court held that the statutory waiting period of at least six months mentioned in Section 13B(2) of the Hindu Marriage Act was not mandatory but directory and that it would be open to the Court to exercise its discretion to waive the requirement of Section 13B(2), having regard to the facts and circumstances of the case, if there was no possibility of reconciliation between the spouses, and the waiting period would serve no purpose except to prolong their agony."
The Hon'ble Apex Court also observed that if the parties are well educated and highly placed in society and the efforts of reconciliation have failed and the husband and wife are unwilling to live together as husband and wife, then no useful purpose would be served by making the parties wait, except to prolong their agony.
Sri.Sudarshan.M., learned counsel for the petitioners in presenting his arguments, submits that the petitioners are -7- WP No. 200998 of 2023 husband and wife; they are highly educated and both of them are Software Engineers. He argued by saying that their marriage has been irretrievably broken down and they are not in a position to live together as husband and wife, therefore, no purpose would be served by making them wait for six months which would only prolong their agony. He argued by saying that the Family Court has failed to have regard to the decision of the Hon'ble Apex Court in the case of AMIT KUMAR (supra) and has erroneously proceeded to reject the application of petitioners for waiving the period of six months.
I have perused the decision of the Hon'ble Apex Court with utmost care. A perusal of the decision of the Apex Court in AMIT KUMAR (supra) depicts that if the husband and wife are not willing to live together as husband and wife, then no purpose would be served by making the parties wait, except to prolong their agony.
In the present case, admittedly, the second petitioner is residing in the USA and the petitioners have been living separately for the last seven years. Furthermore, they are unable to live together as husband and wife, hence they have -8- WP No. 200998 of 2023 mutually agreed to seek dissolution of their marriage and have come to terms including the terms as regards financial arrangement and custody of the articles and also custody of their minor son. Under these circumstances, this Court is of the view that possibility and reconciliation between the petitioners could be remote and that the second petitioner is residing in the USA and has to return to the USA with her minor son and any delay could only agonize the petitioners who are traumatized by their failed matrimony. Therefore, this Court is of the considered opinion that it would be just and proper to set aside the impugned order and allow the application i.e., I.A.No.VI filed by the petitioners for waiving off the statutory cooling period directing the Family Court to consider the petition for mutual divorce.
The result is that the Writ Petition will be allowed. The impugned order dated 21.02.2023 passed by the Principal Judge, Family Court, Bidar on I.A.No.VI in M.C.No.29/2023 is quashed and I.A.No.VI is allowed waiving off the statutory period of six months as contemplated under Section 13B (2) of the Act.
-9-WP No. 200998 of 2023
In the last resort, learned counsel for the petitioners submits that petitioners may be directed to appear before the Family Court, Bidar on 05.04.2023 for further proceedings in the matter.
Submission is noted.
The petitioners are directed to appear before the Family Court, Bidar on 05.04.2023.
Resultantly, Writ Petition is disposed of.
Sd/-
JUDGE VNR List No.: 1 Sl No.: 8