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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL
ABHILASHA KUMARI, J.
JIGNESHKUMAR DILIPBHAI PATEL & Anr.- Petitioners
Versus
PRINCIPAL SENIOR CIVIL COURT - Respondent
Special Civil Application no. 16587 of 2013
Decided on: 30/11/2013
Hindu Marriage Act, 1955 - Section 13B(2) - Constitution of India, 1950, Articles 142, 227 - Petition under Article 227 of the Constitution of India has been preferred, inter alia, with a prayer to quash and set aside the order, passed by Principal Civil Judge (S.D.), , in Hindu Marriage Petition, and to issue directions that the said petition be disposed of - Held, no High Court or Civil Court has the power to grant relief by invoking the doctrine of irretrievable breakdown of marriage - Petition dismissed
Based on the provided legal document, the key points are as follows:
The petitioners filed a mutual consent divorce petition under Section 13B of the Hindu Marriage Act, 1955, citing irreconcilable differences and living separately since 2011 (!) (!) .
They executed a divorce deed and sought to waive the statutory six-month waiting period to expedite the divorce process, primarily due to personal hardships and the expiration of a dependent VISA of petitioner No.2 (!) (!) (!) (!) .
The Court examined whether the statutory period of six months can be curtailed or waived. It concluded that the period under Section 13B(2) is directory, not mandatory, and can be waived in exceptional cases where there is no possibility of reconciliation (!) (!) .
The Court emphasized that the power to waive or expedite the waiting period is limited to the Supreme Court under Article 142 of the Constitution of India. Other Courts, including High Courts and Civil Courts, do not possess this authority (!) (!) (!) .
The Court noted that the primary purpose of the six-month period is to allow parties to reconsider their decision and prevent hasty divorces. However, in cases where the marriage has irretrievably broken down and parties have lived separately for a long period, the Court may exercise its discretion to waive this period (!) (!) (!) .
The Court reviewed various judicial pronouncements and found that, generally, the statutory period cannot be bypassed except by the Supreme Court exercising extraordinary powers under Article 142, especially in cases of irretrievable breakdown of marriage (!) (!) (!) .
The Court ultimately held that, in the present case, the petitioners' circumstances did not warrant exercising the Supreme Court's extraordinary powers. Therefore, the petition for waiver of the six-month period was rejected, and the petition was dismissed (!) .
The Court reaffirmed that the statutory waiting period is a procedural requirement and that only the Supreme Court has the authority to waive it, not other courts (!) (!) .
The decision underscores the importance of adhering to the statutory provisions unless exceptional circumstances justify deviation, which must be exercised solely by the Supreme Court under its constitutional powers (!) (!) .
Please let me know if you need further analysis or specific legal advice regarding this document.
1. Rule. On the facts and in the circumstances of the case, and with the consent of learned
counsel for the petitioners, the petition is being heard and decided finally.
2. The present petition under Article 227 of the Constitution of India has been preferred, inter alia, with a prayer to quash and set aside the order dated 25.10.2013, passed by the learned Principal Civil Judge (S.D.), Kalol, below Exhibit 5, in Hindu Marriage Petition No.43 of 2013, and to issue directions that the said petition be disposed of within a period of fifteen days.
3. Briefly stated, the relevant facts of the case are that, petitioner No.1 (husband) got married to petitioner No.2 (wife), on 17.04.2009. The marriage was solemnized according to Hindu rites and rituals. The petitioners were unable to adjust with each other, due to irreconcilable temperamental differences and it became impossible for them to live together as husband and wife. According to the petitioners, their marriage has broken down irretrievably. Hence, the petitioners have mutually agreed that their marriage be dissolved as they are unable to reside together in spite of bona fide efforts made by relatives and friends. There is no hope that they would be able to resume their matrimonial relationship. The petitioners have not been cohabiting with each other ever since 11.06.2011, and are living separately. The petitioners have jointly executed a Divorce Deed on 23.09.2013, as per their custom and usage. However, the petitioners have also filed Hindu Marriage Petition No.43 of 2013, before the learned Principal Civil Judge (S.D.), Kalol, District: Gandhinagar, under Section 13 of the Hindu Marriage Act, 1955 (“the Act” for short), praying that the marriage solemnized between them be dissolved and a decree of divorce, by mutual consent, under Section 13B of the Act be passed. The said petition was filed on 09.10.2013. Along with the petition, the petitioners have filed an application (Ex.5) under Section 13B(2) of the Act, for waiving the statutory period of six months for passing a decree of divorce.
4. It is the case of the petitioners that petitioner No.2 (wife) got a Student Dependant V.I.S.A. on the basis of her marriage with petitioner No.1 and had gone to the United Kingdom on the said V.I.S.A. This V.I.S.A. would now expire on 31.12.2013, and for petitioner No.2 to apply for an extension of the V.I.S.A. on, or before, 31.12.2013, a decree of divorce is required to be submitted.
5. The petitioners had filed Special Civil Application No.16228 of 2013, for early hearing
of the petition filed under Section 13B of the Act and the application under Ex.5, for waiver of the period of six months. By an order dated 23.10.2013, the petition was permitted to be withdrawn, with a view to filing an application before the learned Principal Civil Judge (S.D.), Kalol, for early hearing of the application under Section 13B(2) of the Act. Pursuant thereto, the application at Ex.5 filed by the petitioners under Section 13B(2) of the Act, came to be rejected by the impugned order dated 25.10.2013, giving rise to the filing of the present petition.
6. Mr. R.J. Goswami, learned advocate, has appeared for Mr.Yunus U.Malek, learned advocate on behalf of both the petitioners. The sole respondent is the learned Principal Civil Judge, Senior Division, Kalol.
7. The issue that arises for consideration is whether the statutory period of six months, as
envisaged under Section 13B(2) of the Act, can be curtailed by this Court, or not.
8. Mr.S.P.Majmudar, learned advocate, has been requested to assist the Court as amicus curiae. He has kindly consented to do so.
9. Mr.R.J.Goswami, learned advocate for the petitioners, has addressed lengthy submissions, which are briefly summarised hereinbelow:
a) That, since 11.06.2011, both the petitioners are residing separately. Almost two and a half years have elapsed since then and there is no hope of a reconciliation between them. It is an admitted position, mutually ag
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