Sudheer Tiwari vs Prerna Tiwari

Goutam Bhaduri, J

Heard.

The instant appeal is against the judgment and decree dated 05/05/2022 passed by the Family Court, Durg in case No.174/2019, whereby a prayer seeking a decree of divorce under the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act, 1955') was dismissed. Being aggrieved by such judgment and decree, the instant appeal has been preferred before this Court.

During pendency of this appeal, the parties have entered into compromise and application under Section 13B of the Act, 1955 has been preferred which is supported by affidavits of both the parties. Perusal of the order of the learned Court below would show that the parties are living separately since October 2016 and it is been submitted that both the parties cannot stay together and have decided to dissolve the marriage.

In this context, the text of section 13B of Hindu Marriage Act would be relevant here and quoted below:

“13-B. Divorce by mutual consent.-- (1)Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, 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the petition referred to in sub-section(1) and not later than eighteen months after the said date, if the period is not withdrawn in the meantime,the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

The Supreme Court in a case law reported in (2017) 7 SCC page 746 – Amardeep Singh Vs. Harveen Kaur has held that in the year 1976, the concept of divorce by mutual consent was introduced and however, section 13-B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grant divorce by mutual consent only if there is no chance for reconciliation. The Supreme Court has further laid down the following principles at para 19 :

“19.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 13-B(2), it can do so after considering the following:

(i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(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 32-A 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.”

Applying the aforesaid principles when the parties have decided to dissolve their marriage by decree of divorce and an amount of Rs.10 Lakhs is already said to have been received by the wife by way of Demand Draft as per letter Annexure A/2 and it is been stated that the parties have agreed that the daughter born out of the marriage named Pratishtha would be in the custody of Prerna Tiwari, the mother, and at the time of marriage of Pratishtha, the appellant Sudheer Tiwari, who is the father, would be free to attend the same, for which the necessary information would be given to him.

Considering the settlement, we deem it appropriate to waive the cooling-off period of six months as the parties are living separately since October 2016 and accordingly grant decree of divorce under Section 13B of the Act, 1955. Accordingly, it is directed that the marriage dated 05/06/2015 solemnized in between the parties shall be dissolved by decree of divorce and the Samjhota Patra (Annexure –A/2) would be the part of the decree.

Accordingly, the appeal stands disposed of.

A decree be drawn accordingly.