03 Jul 2121

Waiving of statutory period under Section 13-B(2) of the Hindu Marriage Act, 1955 is considered to be mandatory but directory - Bombay High Court

Case : Pritam Vijaykumar Dargad v. Sujata Pritam Dargad Writ Petition No. 5822 of 2021

Court : Bombay High Court

Bench : Justice Sandeep K. Shinde

Decided on : 03 Jul 2121

Relevant Statues

Articles 226 of the Constitution of India, 1950

Section 13-B(2) of the Hindu Marriage Act, 1955

Brief Facts & Procedure History

1. The relevant seminal facts are that the parties to the petition are husband and wife whose marriage was solemnized on 22.4.2015. The wife had instituted proceedings under Section 125 of the Code of Criminal Procedure, 1973 and under the Domestic Violence Act, 2005. Later, she withdrew both the proceedings and the Husband had filed a petition under Section 9 of the Hindu Marriage Act, 1955 where it was decreed in November 2018. The Prosecution launched against the husband under Section 498-A of the Indian Penal Code, 1860 also has been settled. As of now, no matrimonial disputes or any proceedings are pending against each other.

2. On 4.2.2021, parties to this petition instituted the petition for dissolution of marriage by mutual consent. Consequently, an application was moved for waiving cooling period for six months. The learned Civil Judge, Senior Division, Gangakhed, rejected the application only on the ground that efforts were not made for mediation to reunite the parties.

The Issue(s) of the Case

Whether the minimum period of six months stipulated under Section 13-B(2) of the Hindu Marriage Act, 1955 for a motion for passing the decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations?

The Observations of the Court

The Honourable Bombay High Court observed the following:

1. Observed that the learned trial Judge declined to waive the cooling period for non-fulfillment of condition no. (ii) that has resulted in the judgment of the Honourable Apex Court in the case of Amardeep Singh v. Harveen Kaur, AIR 2017 SC 4417.

2. Contemplated that the parties have filed an application to the state that the parties were referred to mediation by the Court vide order dated 6.4.2021. Even after mediation, the parties resided to get separated.

3. Witnessed Paragraph No.3 of the application suggesting that the parties have entered and executed the consent terms which were placed on record of Hindu Marriage Petition No. 17/2021.

4. Opined that the Honourable Apex Court in the above case held that the period mentioned in Section 13-B(2) of the Hindu Marriage Act, 1955 is mandatory but directory. Therefore, in the instant case, the Court opined that there is no possibility of parties resuming cohabitation.

5. Hence, the statutory period contemplated under Section 13-B(2) of the Hindu Marriage Act, 1955 is waived.

The Decision held by the Court

The Honourable Bombay High Court set aside the impugned order dated 23.2.2021 and the application in H.M.P. No. 17/2021 pending on the file by the learned Civil Judge, Senior Division, Gangakhed is allowed.

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