Smt. Nidhi Sharma vs Saurabh Kumar Agarwal

Prafulla C. Pant, J.—This appeal, preferred u/s 19 of the Family Courts Act, 1984, is directed against order dated 24.5.2011 passed by Judge, Family Court, Nainital in Suit No. 76 of 2011, whereby said court has rejected the Application 11 C moved by the parties to matrimony for waiving the period of six months required to be awaited u/s 13-B of Hindu Marriage Act, 1955 (for short "the Act").

Heard.

Brief facts of the case are that Appellant Smt. Nidhi Sharma got married to Respondent Saurabh Kumar Agarwal on 25.11.2005 at Haldwani, district Nainital. It is pleaded by them that the relations between the two soured and they started living separately since February, 2006. Before joint petition u/s 13-B of the Act for divorce was moved before the Judge, Family Court, Nainital, it is pleaded on behalf of the learned Counsel for the parties that Appellant filed criminal cases against her husband (Respondent), in which he had to remain in Jail for eight days. There is no issue born out of the wedlock. It is further submitted on behalf of learned Counsel for the parties before this Court that it is practically impossible for them now to reconcile and live together. Their marriage has practically completely broken down. In the circumstances, it is submitted before this Court by learned Counsel for the parties that after joint petition was filed by the parties to matrimony before the trial court for divorce u/s 13B of the Act, their Application 11C for exemption from the waiting period should not have been rejected by the trial court. It is contended that the trial court has erred in law in rejecting the application moved by the Appellant and the Respondent.

Sub-section (2) of Section 13-B of the Act reads as under:

(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in Sub-section (1) and not later than eighteen months after said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved from with effect from the date of the decree.

Appellant Smt. Nidhi Sharma identified by her counsel Sri Pradeep Hairiya, Advocate and Respondent Saurabh Kumar Agarwal identified by his counsel Sri Vishal Singh, Advocate are present in court. They pleaded that their application for waiving the six months'' period required to be awaited, as provided in law, be allowed. They further stated before this Court that for last more than five years, they are not living together, and they have been fighting criminal cases. It has become impossible for the parties to live together after the husband has spent some period in Jail in the criminal case filed against him relating to offence punishable u/s 498A IPC.

Attention of this Court is drawn by learned Counsel for the parties to the case of Samardeep Singh v. Smt. Randeep Kaur 2011 (1) U.D. 50 in which this Court has held that provision requiring to wait for a period of six months in Sub-section (2) of Section 13-B of the Act is directory in nature, and in exceptional cases, the same can be waived. Similar view has been taken by various other High Courts. The view taken by Andhra Pradesh High Court in K. Omprakash Vs. K. Nalini, , Gujarat High Court in Dhiran Harilal Garasia Vs. N. Mansu, , Karnataka High Court in Smt. Roopa Reddy v. Prabhakar Reddy AIR 1994 Kar 12, Delhi High Court in Dhanjit Vadra v. Beena Vadra AIR 1990 Del 146 and Abhay Chauhan v. Ms. Rachna Singh AIR 2006 Del 18 is the same i.e. the provision contained in Sub-section (2) of Section 13-B of the Act is directory in nature, and in exceptional circumstances period requiring to wait for six months can be waived.

In the present case, we have already discussed the special circumstances, in which the parties to matrimony are seeking waiving of the period of six months required to be awaited u/s 13-B(2) of the Act. We are of the view that it is a fit case, where the waiting period of six months can be waived. The purpose of waiting for six months is to give opportunity to parties to reconcile but in the present case there is no hope of reconciliation after husband had been in Jail in the criminal case filed against him by his wife. We have already mentioned that there is no issue born out of the wedlock.

For the reasons as discussed above, in the exceptional circumstances, this appeal is allowed. Impugned order dated 24.5.2011 passed by Judge, Family Court, Nainital in Suit No. 76 of 2011 is hereby set aside, the Application 11C moved before the trial court stands allowed. The trial court may proceed further with the joint petition filed by the parties u/s 13-B of the Act.