Back
2021 Supreme(Del) 805
IN THE HIGH COURT OF DELHI
Prathiba M. Singh, J.
Kavita Malik - Appellants
Vs.
State of NCT of Delhi - Respondent
W.P. (C) 3922/2021 and CM Appl. 11792/2021
Decided On : 16-04-2021
For the Appellant :Juhi Arora, Advocate
For the Respondents:Sumit Jidani, Advocate
The court emphasized the importance of timely and efficient processing of divorce by mutual consent and the discretion of the court to waive the cooling-off period under special circumstances.
Headnote:
Divorce - Mutual Consent - Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746; Devinder Singh Narula v. Meenakshi Nangia, (2012) 8 SCC 580
Fact of the Case:
The petitioner filed for divorce by mutual consent, and the first motion was recorded by the Family Court. However, the court failed to pass orders on the first motion, causing inconvenience to the parties.
Finding of the Court:
The court found that the Family Court's failure to pass orders on the first motion caused inconvenience to the parties and directed the Family Court to pass orders on the first motion, dating back to the original date of recording the statements.
Issues: Failure of the Family Court to pass orders on the first motion, inconvenience caused to the parties, and the legal position on waiver of the cooling-off period in divorce by mutual consent.
Ratio Decidendi: The court relied on the judgments in Amardeep Singh v. Harveen Kaur and Devinder Singh Narula v. Meenakshi Nangia to establish that the time-period of six months for cooling off can be waived by the Court under special circumstances. The court directed the Family Court to pass orders on the first motion, dating back to the original date of recording the statements.
Final Decision: The court directed the Family Court to pass orders on the first motion, and the Registrar General was instructed to look into similar cases pending before the Family Courts.
JUDGMENT :
Prathiba M. Singh, J.
1. This hearing has been done through Video Conferencing.
2. The present petition has been filed by Ms. Kavita Malik, who was married to Mr. Amit Malik on 8th February, 1997. Due to various reasons, the parties did not wish to continue with the marriage and accordingly, they agreed for dissolution of their marriage by mutual consent.
3. A Memorandum of Understanding was arrived at between the parties on 30th November, 2019 by which various terms and conditions were agreed upon by the parties. The first motion petition for divorce by mutual consent was filed on 11th March, 2020. However, owing to the lockdown, physical hearing was not held in the first motion.
4. The Family Court thereafter listed the matter for 20th July, 2020 on which date, the statements of the parties in the first motion were recorded and the following order was passed:
"Efforts for reconciliation have been made if the parties can reside together but both the petitioners have submitted that they cannot reside together and have mutually and amicably decided to part ways to take divorce. Considered.
Joint statement of both the petitioners have been recorded separately and both the petitioners have been identified by their counsel. Both the parties are directed to file their original documents and also to submit the signed copy of their statements recorded today, as per the directions of the Hon'ble High Court after the physical court functioning. Be put up for consideration of the statements and further proceedings for 01.09.2020."
5. Ld. counsel for the Petitioner submits that on the said date, the Family Court had directed the Petitioner, after recordal of the statements, to file the physically signed copies of the statements. According to her, as per the usual practice in the family courts, the order on first motion was to be passed on the file upon filing of physical copies. Since the physical copies were filed within a period of two days duly verified by the respective counsels for the parties and no intimation was given by the Court that the first motion is not passed, all parties and counsels were under the impression that the order on first motion was passed.
6. On the basis of this understanding, the parties through their counsels filed On 17th November, 2020, the Petitioner moved an application seeking waiver of the cooling off period of six months in terms of the judgment of the Supreme Court in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746. In the application for second motion, an averment was made to the following effect:
"12. That in terms of the settlement between the parties, the first motion divorce petition was filed in 17/03/2020 and the same allowed by the Hon'ble Court vide order dated 20/07/2020. A copy of Order Dated 20/07/2020 is annexed herewith and marked as ANNEXURE P-5
The order on the first motion was to be Annexure P-5 in the second motion application. Instead of filing the order, the application for certified copy of the order on first motion was annexed. The parties however, never received the order on the first motion.
7. The second motion was listed on 21st November, 2020, however, the matter continued to be adjourned from time to time. Finally, on 10th March 2021, the second motion was taken up and objections were raised by the Court that the certified copy of the order on the first motion was not filed. The Petitioner applied for the verified copy of the order on the first motion but was not supplied the same. She, accordingly, re-applied for obtaining a copy of the said order. Finally, on 16th March, 2021, it was realised that a certified copy could not be issued as the order on the first motion itself was not passed.
8. The grievance of the Petitioner is that the Petitioner is a 45 year old lady who had entered into a Memorandum of Understanding with her husband and the various terms and conditions which were to be abided by the parties were given effect to. Both parties are living separately sinc
