Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 4580

IN THE HIGH COURT OF DELHI AT NEW DELHI
Sanjeev Sachdeva, Manoj Jain, JJ.
Sanshu Khurana – Appellant
Versus
Kimsi Singla – Respondent
MAT.APP.(F.C.) 208 of 2022 & CM APPL. 54936 of 2022 (stay)
Decided On : 17-05-2023

Advocates appeared:
Mr. Ankur Bhasin, Advocate with Appellant in person.
Mr. Gurjit Singh with Ms. Deepti Dogra, Advocates with Respondent in person.

The central legal point established in the judgment is the court's discretion to allow the amendment and conversion of a divorce petition under the Hindu Marriage Act, 1955, and the consideration of waiver of the statutory period under Section 13B(2) based on the parties' circumstances.

Headnote:
Divorce - Mutual Consent - Summary: The appellant sought to amend the petition for divorce under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 into a petition for divorce by mutual consent. The court allowed the amendment and conversion, accepting the oral prayer of the parties and directing the filing of the amended petition before the Family Court. The court also considered the waiver of the statutory period under Section 13B(2) due to the parties living separately since 2021 and being in litigation.
Fact of the Case:

The appellant sought to amend the petition for divorce under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 into a petition for divorce by mutual consent.
Finding of the Court:

The court allowed the amendment and conversion, accepted the oral prayer of the parties, and directed the filing of the amended petition before the Family Court. The court also considered the waiver of the statutory period under Section 13B(2) due to the parties living separately since 2021 and being in litigation.
Issues: Amendment of divorce petition, conversion to mutual consent, waiver of statutory period under Section 13B(2)
Ratio Decidendi: The court's decision was influenced by the parties' mutual consent, their separation since 2021, and the ongoing litigation, leading to the allowance of the amendment and conversion of the petition, as well as the consideration of waiver of the statutory period under Section 13B(2).
Final Decision: The appeal was disposed of with the court allowing the amendment and conversion of the petition and considering the waiver of the statutory period under Section 13B(2).

JUDGMENT

Sanjeev Sachdeva, J. (Oral)

1. Appellant impugns order dated 28.11.2022, whereby, the application filed by the appellant seeking striking off the defence of the respondent has been dismissed.

2. Parties are present in person along with their respective counsel. Parties agree that they shall take divorce by way of mutual consent.

3. Respondent, who is present in person, submits that she does not claim any maintenance or alimony from the appellant. Respondent further undertakes that she shall withdraw/compound/cooperate in quashing of the subject FIR No.410/2022 under Sections 498A/406/34 IPC, Police Station Prashant Vihar.

4. The undertakings are accepted.

5. Parties pray that the petition filed by the appellant seeking divorce under Section 13(1)(ia) and 13(1)(ib) of Hindu Marriage Act, 1955 be permitted to be amended and converted into a petition for divorce by mutual consent.

6. In view of the above, the oral prayer of the parties is accepted and the petition filed by the appellant under Section 13(1)(ia) and 13(1)(ib) of the Act is allowed to be amended and is converted into a petition under Section 13B(1) for grant of divorce on mutual consent (First Motion) on the records of the Family Court.

7. The amended petition duly signed and supported by respective affidavits of the parties is directed to be filed before the Family Court on 08.06.2023. Parties shall be personally present before the Family Court for recording of their respective statements under Section 13B(1) of the Act on the said date.

8. Parties further pray that in view of the fact that they are living separately since August, 2021 and been in litigation, the statutory period under Section 13B(2) be waived.

9. On an application being filed, seeking waiver of the statutory period of six months, the Family Court shall take into account the fact that the parties have been living separately since 2021 and have been in litigation and resumption of cohabitation has not been possible and grant waiver of the statutory period under Section 13B(2) of the Act in accordance with law.

10. Appeal is disposed of in the above terms.

11. Order Dasti under the signatures of the Court Master.

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