Naveen Kumar Dass vs Reena Kumari

Jyotsna Rewal Dua, J

Heard the petitioner in person through video conferencing. In view of the nature of the order being passed hereinafter, no notice is required to be

issued to the respondent.

The parties to the lis are husband and wife. Marriage was solemnized between them as per Roman Catholic Rights and Rituals at Shimla on

15.02.2009. Marital discord developed between them. No issue was born to them. They are stated to be residing separately w.e.f. 18.03.2018.

Petitioner/husband is a practicing lawyer, whereas respondent/wife is holding postÂgraduate qualification and is stated to be gainfully employed.

Petition for dissolution of marriage by decree of divorce by mutual consent under Section 28 of Special Marriage Act, 1954 was filed by the parties

before the learned District Judge (Family Court) Shimla. The statements of parties, qua first motion were recorded by learned District Judge (Family

Court) Shimla on 04.12.2020. The parties jointly stated as under:Â​

“Jointly stated that our marriage was solemnized as per Roman Catholic Letin Rights and Rituals at Shimla on 15.02.2009 and marriage certificate

to this effect has also been placed on record. After the marriage, we lived together as husband and wife till 18.03.2018. Out of this wedlock no issue

was born to us. Due to temperamental differences, we could not pull on well and as such, we have mutually decided to seek divorce. It is not possible

for us to live together as husband and wife and the efforts made by our relatives to reconcile the differences turned futile. The petitioner will not claim

any maintenance in any form in future from the co petitioner. We have made this statement voluntarily, without any inducement, threat or promise.

Our marriage may kindly be dissolved.â€​

Learned District Judge (Family Court) Shimla, after recording statements of the parties granted them six months statutory period to ponder over their

decisionÂ​quaÂ​divorce and the matter has been ordered to be listed on 5.06.2021.

The petitioner appearing in person through video conferencing submits that in the instant case the parties have explored all possibilities of

reconciliation but failed. And it is only thereafter, they had preferred the petition for divorce by mutual consent under Section 28 of the Special

Marriage Act. Therefore, in the facts and circumstances of the case, the statutory period of six months deserves to be relaxed. With this objective, he

has filed the instant petition under Article 227 of the Constitution of India for the following prayer:Â​

“It is, therefore, prayed that keeping in view the above narration of facts and circumstances the present petition be allowed and the statutory period

of six months for passing a decree of divorce may kindly be ordered to be condoned in the interest of justice and the Ld. Court below i.e. District

Judge Shimla (Family Court) and order dated 4.3.2020, in case titled as Reena Kumari Versus Naveen Kumar Dass in case No.175ÂS/3 of 2020 may

kindly be ordered to be modified and the Ld. Court below may kindly be directed to pass a decree of divorce at the earliest in the interest of justice.â€​

Section 28(2) of Special Marriage Act is pari materia to Section 13(B)(2) of the Hindu Marriage Act 1959. The Section runs as under:Â​

“28. Divorce by mutual consent (1) Subject to the provisions of this Act and to the rules made thereunderm, a petition for divorce may be

presented to the district court by both the parties together on the ground that they have been living separately for a period of one year or more, that

they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subÂsection (1)

and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after

hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the

petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.â€​

The question whether the minimum period of six months stipulated under Section 13(B)(2) of the Hindu Marriage Act for a motion of passing decree

of divorce on the basis of mutual consent can be relaxed, came before the Hon’ble Apex Court in (2017) 8 SCC 746, titled Amardeep Singh Vs.

Harveen Kaur. After tracing the legal journey, Hon’ble Apex Court held that period mentioned in Section 13ÂB(2) is not mandatory but directory.

It shall be open to the Court to exercise its discretion in facts and circumstances of each case, where there is no possibility of parties resuming

cohabitation and there are chances of alternative rehabilitation. Relevant paragraphs of the judgment are reproduced hereinafter:Â​

“17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to

enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony

between unwilling partners did not serve any purpose. The object of the cooling off period was to safeguard against a hurried decision if there was

otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties

when there was no chance of reconciliation. Through every has to be made to save a marriage, if there are no chances of reunion and there are

chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to

waive the statutory period under Section 13Â​B(2), it can do so after considering the following:

(i) the statutory period of six months specified in Section 13Â B(2) in addition to the statutory period of one year under Section 13ÂB(1) of separation

of parties is already over before the first motion itself:

(ii) all efforts for mediation/conciliation including efforts in terms of Order 32ÂA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts

Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts:

(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

(iv) the waiting period will only prolong their agony.

Since we are of the view that the period mentioned in Section 13ÂB(2) is not mandatory but directory, it will be open to the Court to exercise its

discretion in facts and circumstances of each case, where there is no possibility of parties resuming cohabitation and there are chances of alternative

rehabilitation.â€​

As of now, petitioner has not moved any application before the learned Court below for waiver of the statutory period provided under Section 28(2) of

the Special Marriage Act 1954.

Instant petition, therefore, is disposed of by granting liberty to the parties including the petitioner to move appropriate application seeking relaxation of

the period prescribed under Section 28(2) of the Special Marriage Act 1954. In case such an application is made within a period of two weeks from

today then the same shall be considered and decided in accordance with law after considering the factual aspects and attending circumstances within

a period three weeks thereafter.

With these observations, the present petition is disposed of alongwith pending miscellaneous application(s), if any.