The court has the power to convert an original petition into one under Section 13B of the Hindu Marriage Act, 1955, and waive the requirement of the second motion and the waiting period in the interest of justice.

( 1 ) THIS is a peculiar case where both husband and wife have been litigating with each other after the relations between them became strained. Both the partics have been litigating for a considerable length of time, levelling allegations against each other of ill treatment etc. The respondent had moved to Pondicherry to stay with her parents, which resulted in the petitioner filing proceedings in the Hon ble Supreme Court seeking a writ of Habeus Corpus. That matter was concluded upon the respondent appearing before the Supreme Court and slating that she i s staying with her parents of her own free will and that she shall not rejoin her husband. Those proceedings were concluded. The parties reached some kind of settlement. Even that settlement had failed to work. The matter was pending in the matrimonial Court where by the Trial Court had ordered the parties to lead evidence relating to the plea of desertion primarily because even if the affidavit of the respondent filed before the Supreme Court is considered, two years period of desertion on the date of passing of the impugned order has not yet expired. The petitioner filed proceedings before this Court challenging the impugned order praying that in the light of the prayer, statements of the respondent wife categorically stating that she does not wish to return to matrimonial home, the Court should have allowed the petition for divorce and passed a decree of divorce on the ground of desertion.

( 2 ) NOTICES were issued. During the pendency of the petition, parties reached an amicable settlement and filed a petition before this Court, being Exhibit CI. The petitioner paid the air fare for the respondent and her mother to enable them to appear before the Court to make statements in support of the said compromise petition. In their statements in support of the said application, both the parties have prayed that the proceedings pending be converted into a petition undersection 13b and divorce for mutual consent be awarded and the time likely to be taken for the second motion should be waived in the said circumstances of the present case since there is absolutely no doubt that the marriage has already broken down irretrievably. The Trial Court record, which is already here before this Court, was also examined. I have seen the Trial Court record also and from the material available, it is sufficiently clear that it will not be psible for the parties to live together. I had an occasion to examine even the demeanour of the parties and from their manner also, it appeared quite clear that the marriage between them is as good as dead. Sending the proceedings back together with the compromise petition, to my mind, would be a futile exercise leading to further prolongation of the litigation and continued agony of the parties. From the address of both the Counsel also, it became quite clear that the marriage between the parties is lying dead and over. In these circumstances, and keeping in view the litigation in different Courts, which has been going on between the parties over the last about six years, it will be a fit case for cutting across any procedural objections to resolve the matter between the parties in terms of their mutual agreement instead of directing them to go before the Court below. I think that it will be appropriate to withdraw the Hindu Marriage Case No. 557 of 1992 pending before Ms. Veena Birbal, Additional District Judge, Delhi to the file of this Court and convert the original petition intoone undersection 13b. I am supported in taking this view by the decisions, rendered in the cases : (i)Pratibha Prabhakar Matljrekar v. Prabhakar Damodar Manjrpkar, REFERRED TO All India Hindu Law Reporter -Volume II 1985 (1) Bombay High Court 361, (ii) Smt. Chandrakanta v. Rajesh, REFERRED TO All India Hindu Law Reporter -Volume II 1985 (1) Rajasthan High Court 426, (iii) V. Bhagat v. Mrs. D. Bhagat, REFERRED TO JT 1993 (6) SC 428=ii (1993) DMC 568, (iv) Mumn Devi v.