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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
Deepak Chauhan & Anr. – Appellants
Versus
State of H.P. & Ors. - Respondents
Cr.MMO No.58 of 2022
Decided on : 12-12-2022
Section 482 Cr.P.C - Quashing of summoning order - Protection of Women from Domestic Violence Act, 2005 - Hindu Marriage Act - 12, 13-B - 13B(2)
Fact of the Case:
The petitioners sought quashing of summoning order issued in a case filed under the Protection of Women from Domestic Violence Act, 2005. The parties were unable to live together due to differences, leading to a complaint by the respondent under the D.V. Act. The court explored the possibility of amicable settlement and recorded a compromise. However, the respondent expressed dissatisfaction with the return of articles and alimony before signing the petition for divorce by mutual consent.
Finding of the Court:
The court found that the marriage had irretrievably broken down and there was no possibility of reconciliation. It allowed the petition, quashed the summoning order, and directed the parties to file a petition under Section 13-B of the Hindu Marriage Act before the District Judge. The court also waived the statutory period of six months for divorce by mutual consent.
Issues: The main issue was the quashing of the summoning order and the subsequent proceedings. Additionally, the return of articles and alimony before signing the petition for divorce by mutual consent was a point of contention.
Ratio Decidendi: The court relied on various judgments, including those of the Hon'ble Apex Court, to support the waiver of the statutory period for divorce by mutual consent. It emphasized the objective of enabling parties to dissolve a marriage by consent when irreparably broken and no possibility of reconciliation.
Final Decision: The petition was allowed, summoning order quashed, and the parties were directed to file a petition for divorce by mutual consent. The court waived the statutory period of six months and directed the parties to appear before the District Judge for further proceedings.
JUDGMENT :
Sandeep Sharma, J.
By way of instant petition filed under Section 482 Cr.P.C, prayer has been made on behalf of the petitioners for quashing of summoning order dated 12.11.2021, issued by learned Chief Judicial Magistrate, Hamirpur, District Hamirpur, H.P., in Case No.94 of 2021, titled as Aradhana Kumari versus Deepak Chauhan and another.
2. Precisely, the facts of the case, as emerge from the record are that the marriage interse petitioner namely, Sh. Deepak Chauhan and respondent No.3, Smt. Aradhana Kumari was solemnized on 2.12.2014 as per Hindu rites and rituals and thereafter, both the parties were living happy married life and out of their wedlock, one boy was born on 26.04.2016. Since, both petitioner No.1 and respondent No.3 were unable to live together on account of certain differences, respondent No.3 started living separately since October, 2021. Since, parties failed to resolve their dispute amicably interse them, respondent No.3 filed complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘D.V. Act’) against her husband namely, Sh. Deepak Chauhan and father-in-law Sh. Sunil Kumar. Learned trial Court taking cognizance of the averments contained in the aforesaid complaint, issued process against the petitioners vide order dated 12.11.2022 (Annexure P-1).
3. Being aggrieved and dissatisfied with issuance of aforesaid process, petitioners approached this Court in the instant proceedings for quashing of summoning order as well as consequent proceeding pending before the Court below.
4. Having regard to the nature of controversy interse parties, this Court at first instance, deemed it necessary to explore possibility of amicable settlement interse parties. Unfortunately, parties were not willing to live with each other and as such, they resolved to settle their dispute amicably by filing petition under Section 13-B of Hindu Marriage Act, seeking therein divorce by way of mutual consent. On 3.8.2022, this Court recorded the factum of compromise arrived interse parties. As per agreement, petitioner No.1 agreed to pay sum of Rs. 13.00 lakh in lump sum to respondent No.3 towards permanent alimony, which fact stands duly recorded in order dated 3.08.2022 passed by this Court in the instant proceedings. On 9.9.2022, learned counsel representing the petitioners apprised this Court that demand draft in the sum of Rs. 5.00 lakh has been made in favour of respondent No.3, which was handed over to learned counsel for respondent No.3. On 9.9.2022, this Court passed the following orders:-
Learned counsel representing the respondent undertakes to make available bank account of respondent enabling the petitioner to remit the amount directly in the bank account of respondent in terms of order dated 03.08.2022. The application stands disposed of.”
5. Today, during the proceedings of the case, learned counsel representing the petitioners submitted that though he has prepared peti
The main legal point established in the judgment is the court's discretion to waive the statutory period for divorce by mutual consent when the marriage has irretrievably broken down and there is no ....
Point of law: Mutual divorce – Waiving of six month periods - it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of part....
The cooling period for divorce under Section 13-B(2) of the Hindu Marriage Act is not mandatory and can be waived if there is no possibility of reconciliation between the spouses.
The waiting period under Section 13-B(2) of the Hindu Marriage Act is directory, allowing courts to grant divorce by mutual consent without delay when reconciliation is impossible.
The statutory cooling-off period under Section 13-B(2) of the Hindu Marriage Act is directory, allowing for a divorce by mutual consent even at the appellate stage.
The cooling-off period under Section 13-B(2) of the Hindu Marriage Act, 1955 is directory and can be waived by the court in cases where reconciliation is not possible.
The waiting period under Section 13-B(2) of the Hindu Marriage Act is directory, allowing courts to grant immediate divorce when the marriage is irretrievably broken.
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