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2024 Supreme(Bom) 1108
IN THE HIGH COURT OF BOMBAY AT GOA
BHARAT P. DESHPANDE, J.
Vishwas Kawthankar - Appellant
Versus
Sunita Vishwas Kawthankar – Respondent
Writ Petition No. 230 of 2024
Decided On : 24-04-2024
For the Appellant : Clayton Fonseca, Adv.
For the Respondent: Kewal Sawant, Adv.
The court can waive the mandatory waiting period for mutual consent divorce if reconciliation efforts have failed and circumstances warrant such a decision.
Headnote:(A) Law of Divorce - Articles 36, 40 - Mutual consent divorce - Parties married in 2016, separated within a year, and filed for mutual divorce with consent terms - Court refused to waive mandatory one-year waiting period under Article 40 - Court held that inherent power exists to waive the period based on circumstances, as reconciliation efforts were exhausted - Principles from Amardeep Singh case applied to allow waiver of waiting period. (Paras 6, 12, 20)
(B) Divorce by Mutual Consent - The court emphasized that the waiting period is not absolute and can be waived if reconciliation is impossible and all efforts have been made. (Paras 19, 20)
Facts of the case:
The petitioner and respondent, married in 2016, faced domestic violence allegations leading to mediation, resulting in consent terms for mutual divorce, including a payment of Rs.9,00,000/- upon divorce. (Paras 4, 5, 14)
Findings of Court:
The court found that the marriage was irretrievably broken, and the mandatory waiting period could be waived to prevent further emotional distress. (Paras 19, 20)
Issues: The main issue was whether the court could waive the one-year waiting period for mutual divorce under Article 40 given the circumstances of the case. (Paras 6, 20)
Ratio Decidendi: The court ruled that the waiting period under Article 40 is not absolute and can be waived when reconciliation is impossible, applying principles from the Amardeep Singh case. (Paras 12, 20)
Result: Application for waiver of waiting period allowed; impugned order quashed.
JUDGMENT :
(Bharat P. Deshpande, J.)
1. Rule
2. Rule is made returnable forthwith.
3. Heard finally with the consent.
4. In the present petition, very sensitive issue and that too with regard to grant of mutual consent divorce is raised. Petitioner and the respondent got married in the year 2016. However within a period of one year, differences arose, matter landed before the Magistrate by filing Domestic Violence cases against the husband by the wife. Subsequently, and by interference of the Court, parties were referred to mediation. Learned Mediator submitted report as successful by drawing terms between the parties. Such consent terms were placed before the learned Magistrate at Mapusa in a Domestic Violence case. Consent terms were duly signed by both the parties along with their Advocates.
5. Petitioner as well as respondent agreed that they will separate by filing mutual divorce. Petitioner agreed to pay Rs.9,00,000/- as on the date when the mutual divorce is granted. Similarly, wife agreed that she will withdraw all the complaints filed against her husband only on the date when the mutual divorce is granted.
6. Accordingly, the petitioner and the respondent filed matrimonial petition before concerned Court for grant of divorce by mutual consent under Article 36 of the Law of Divorce. Along with such petition, parties jointly filed an application for waiver of the said period as found mentioned in Article 40 so as to give quietus to the dispute between the parties and to withdraw the proceeding as well as to pay amount agreed between the parties. Learned trial Court, however, refused to waive such period claiming that period of one year as provided under Article 40 is mandatorily to be gone into before confirming the divorce by the mutual consent. Petitioner as well as respondent are therefore, before this Court challenging such decision.
7. Mr. Fonseca appearing for the petitioner and Mr. K. Sawant appearing for the respondent would submit that Civil Court is having inherent power to waive such period based on circumstances of each case. Reliance is placed in the case of Amardeep Singh vs. Harveen Kaur, 2017(6) Bom. C.R. 773.
8. Mr. Fonseca submits that principles laid down by the Apex Court though coming out of provisions of Section 13-B(2) of the Hindu Marriage Act, same would be applied with equal force to the matter in hand. He submits that provisions of Article 40 of the law of divorce applicable to State of Goa is only with an intention to give time to the spouses for the purpose of reconciliation or rethinking about the mutual divorce. He submits that matter in hand is quite distinct and different as all efforts for reconciliation or rethinking in living together were already exercised and finally parties decided to apply for mutual divorce. He submits that in such circumstances, and in order to comply with the consent terms, Court could have waived the period of one year so as to give quietus to the dispute and allow the parties to separate from each other. Mr. Sawant appearing for the respondent also endorsed the same view and submitted that provisions cannot be stretched to mean that when a marriage is broken to the extent that it is not possible for the parties to live together in future, Court should consider the option of waiving the period.
9. The scheme found in the Law of Divorce for applying for divorce by mutual consent, Article 36 provides as to how the application should be filed and what documents to be attached. Article 37 deals with the power of Judge to admit such petition and to issue summons to other side. It further shows that the Judge should consider reconciliation of the parties and only if it is not possible shall record it in writing about the agreement of the spouses for divorce, in presence of two respectable persons.
10. Article 39 would then provide that the Judge shall sanction by judgment agreement of spouses, recorded as per preceding Article, granting them provisional divorce for a period o
