The waiver of the statutory waiting period under Section 13B(2) of the Hindu Marriage Act requires a proper application and cannot be granted automatically.

JUDGMENT :

Arun Kumar Jha, J.

The matter has been taken up on mentioning being made on behalf of the petitioner.

2. Heard learned counsel for the petitioner and I intend to dispose of the petition at the admission stage itself.

3. The instant petition has been filed under Article 227 of the Constitution of India against the order dated 27.06.2024 passed by learned Principal Judge, Family Court, Aurangabad in Matrimonial Case No. 179 of 2024, whereby and whereunder the learned Family Court admitted the case and recorded the first motion and directed for statement of parties on second motion fixing 24.12.2024 as next date.

4. Learned counsel for the petitioner submits that the learned Family Court has passed the order in violation of the directions of the Hon’ble Supreme Court in the case of Amardeep Singh Vs. Harneet Kaur reported in (2017) 8 SCC 746 passed in Civil Appeal No. 11158 of 2017 dated September 12, 2017. Learned counsel further submits that the Hon’ble Supreme Court in the case of Amardeep Singh (supra) has held that while the court dealing with a matter is satisfied that a case is made to waive out the statutory period under Section 13B(2), it can do so and certain guidelines have been issued. However, the learned Family Court did not consider this aspect of the matter and in mechanical manner passed the order for second motion fixing a date after six months of the first motion. Earlier while the bail petition of the respondent has been pending before learned Sessions Judge, Aurangabad, the matter was compromised between the parties and in terms of compromise the respondent agreed to make payment of Rs.18,00,000/-(Eighteen lakhs) to the petitioner in installment and subject to the payment and other terms, the parties were directed to move for dissolution of marriage by filing a petition under Section 13B of the Hindu Marriage Act for divorce by mutual consent. Accordingly, Matrimonial Case No. 179 of 2024 has been filed. Learned counsel further submits that in the said compromise it was also decided that the parties would withdraw their cases which they have been fighting against each other. Learned counsel further submits that irretrievable break down of the marriage has taken place and there is no possibility that the parties will again cohabit and continuation of matrimonial case is not possible. Learned counsel also referred to the decision of the Hon’ble Supreme Court in the case of Shilpa Sailesh Vs. Varun Sreenivasan reported in 2023 SCC OnLine 544 passed in Transfer Petition (Civil) No. 118 of 2014 wherein the Hon’ble Supreme Court has held that the court has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent without being bound by the procedural requirement to move the second motion. Thus, learned counsel submits that the learned Family Court was required to put the matter for second motion forthwith to make the parties free from further harassment and mental agony.

5. Perused the record.

Section 13B of the Hindu Marriage Act reads as:-

“13B. 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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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 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