Smt. Mamta Bhatt vs Atul Bhatt

Prafulla C. Pant, J.—This appeal is directed against the order dated 22.03.2011 passed by Judge Family Court, Nainital in Civil Suit No. 35 of 2011, whereby said Court has declined the prayer made by the parties to the Suit for waiving the period of six months required to be waited under Sub-section (2) of Section 13B of Hindu Marriage Act,1955.

Heard.

Brief facts of the case are that Appellant Mamta Bhatt got married to Atul Bhatt on 22.04.2009 following the Hindu rites in Haldwani, District Nainital. However, soon after the marriage, within fifteen days, the relations between the parties to the matrimony soured and the Appellant left the matrimonial house, and started living in her parental house. All the articles relating to Stridhan were admittedly received back by the Appellant. The Appellant and Respondents started living separately as stated in their joint petition for divorce, filed before the trial court since May, 2009. The joint petition seeking divorce u/s 13B of Hindu Marriage Act, was filed on 11.03.2011. The parties to the marriage thereafter moved to application praying that the period required to be waited under Sub-section (2) of Section 13B of Hindu Marriage Act, 1955 be waived and the petition be disposed of.

The trial court vide impugned order, quoting Sub-section (2) of Section 13B of the Act, observed that application is not maintainable.

On behalf of the Appellant attention of this Court is drawn to the principle of law laid down in Sandeep Singh v. Randeep Kaur, 2011(1) UD 50 in which it has been held that the provision requiring to wait for six months contained in Sub-section (2) of Section 13B, is directory in nature, and in exceptional cases the same can be waived. Similar view has been taken by the various other High Courts. The view taken by Andra Pradesh High Court in K. Omprakash Vs. K. Nalini, Gujrat High Court inDr. Dhiran Harilal Garasia v. N. Mansu AIR 1988 Guj 159 Karnataka High Court inSmt. Roopa Reddy v. Prabhakar Reddy AIR 1994 Karn 12 Delhi High Court in Dhanjit Vadra v. Smt. Beena Vadra AIR 1990 Del 146 and in Abhay Chauhan v. Ms. Rachna Singh AIR 2006 Del 18 have taken the same view that provisions contained in Sub-section (2) of Section 13B of Hindu Marriage Act, 1955 is directory in nature and in exceptional circumstances, the period requiring to wait for six months can be waived.

In the present case Respondent Atul Bhatt is an Advocate. Appellant Mamta Bhatt who is present in Court states that she is in job in Sushila Tiwari Hospital which is in the public sector. She further told this Court that she is engaged to get married to another person, and due to the delay in dissolution of her marriage, her interest is suffering. This fact has also been stated in the joint petition filed before the trial court. Learned Counsel for the Respondent submitted before this Court that the husband has no objection if the waiting period of six months is waived. It is not a case where the husband and wife were living together soon before filing of the joint petition rather admittedly they were living separately for more than one year and no hasty decision has been taken in moving the joint petition for divorce.

In the above circumstances, it appears to be an exceptional case, and in the interest of justice, considering the peculiar circumstances of the case, the waitage period can be waived.

For the reasons as discussed above, we allow this appeal with the consent of the parties and set aside the impugned order dated 22.03.2011 passed by Principal Judge, Family Court Nainital in Civil Suit No. 35 of 2011. The application 11(c) moved before the trial court seeking waiving of the waiting period is hereby allowed. The trial court shall proceed further and pass the orders in the suit.