Back
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
V.K. Bist, J.
Chandra Shekar Malhotra - Petitioner
Versus
Smt. Nishu Manchanda - Respondent
Writ Petition (M/S) No. 2431, 2433 of 2016
Decided On : 05-09-2016
Divorce - Waiver of Statutory Period - Hindu Marriage Act, 1955, Section 13(B)
Fact of the Case:
The petitioners in two writ petitions sought waiver of the statutory period of six months as prescribed under Section 13(B) of the Hindu Marriage Act, 1955, for grant of divorce on mutual consent.
Finding of the Court:
The court found that the statutory period of six months as provided under Section 13-B of the Act cannot be waived by the Family Court or the High Court. The court upheld the orders of the Family Courts and dismissed both writ petitions.
Issues: The main issue was whether the Family Court or the High Court has the power to waive the statutory period of six months as prescribed under Section 13(B) of the Hindu Marriage Act, 1955.
Ratio Decidendi: The court held that the provision in Section 13-B of the Act is clear and does not provide for exceptional circumstances where the statutory period of six months can be waived. It cited the decision of the Hon’ble Supreme Court in Anil Kumar Jain vs. Maya Jain, which held that neither Civil Courts nor even the High Courts can pass orders before the prescribed period under the relevant provision of the Act.
Final Decision: Both writ petitions were dismissed, and no costs were awarded.
V.K. Bist, J.
Since these two writ petitions raise common questions of law, I am disposing of the same by common judgment.
2. Petitioner, in Writ Petition (M/S) No. 2431 of 2016, calls in question the order dated 13.07.2016 passed by the learned Judge, Family Court, District Udham Singh Nagar in Civil Case No. 306 of 2016, whereby the case filed by the petitioner as well as by the respondent under Section 13 (B) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) for grant of decree of divorce on mutual consent has been registered and the matter is fixed for hearing on 18.01.2017, which is after the statutory period of six months of waiting. He also seeks a direction to the learned Judge, Family Court, District Udham Singh Nagar to waive off the statutory period of six months, as prescribed under Section 13(B) of the Act, and the petition filed by the petitioner as well as by the respondent for grant of divorce on mutual consent may be allowed. Petitioners, in Writ Petition (M/S) No. 2433 of 2016, challenges the order dated 04.08.2016 passed by the learned Judge, Family Court, District Udham Singh Nagar in Case No. 240 of 2016, whereby the joint application filed by the petitioners under Section 13(B) of the Act has been dismissed and the matter is fixed for hearing on 07.12.2016, which is after the statutory period of six months of waiting.
3. Heard Mr. Sandeep Kothari, learned counsel appearing for the petitioner in Writ Petition (M/S) No. 2431 of 2016 and Mr. Vikas Anand, learned counsel appearing for the petitioners in Writ Petition (M/S) No. 2433 of 2016.
Writ Petition (M/S) No. 2431 of 2016:
4. Marriage of the petitioner was solemnized with the respondent on 25.02.2015. Soon after the marriage, the petitioner as well as the respondent realized that there are material differences between them and, on 25.03.2015, the respondent left the company of the petitioner. Thereafter, several rounds of talk for settlement were made, but of no avail. On 13.07.2016, the petitioner as well as the respondent filed a case for grant of divorce on mutual consent in the Court of Judge, Family Court, District Udham Singh Nagar. The learned Judge, Family Court, District Udham Singh Nagar, vide his order dated 13.07.2016, directed to register the case filed by the petitioners for grant of decree of divorce on mutual consent under Section 13(B) of the Act and fixed the matter for hearing on 18.01.2017, which is after the statutory period of six months of waiting. Hence, the Writ Petition (M/S) No. 2431 of 2016 has been filed by the petitioner.
Writ Petition (M/S) No. 2433 of 2016:
5. The marriage of the petitioners was solemnized with each other on 08.05.1992. Few years after the marriage, serious differences and incompatibility surfaced between them and all attempts of settlement by the family members failed. Petitioners stopped living together since 2011 and, thereafter, petitioners filed a case for grant of divorce on mutual consent in the Court of Judge, Family Court, District Udham Singh Nagar. The learned Judge, Family Court, District Udham Singh Nagar, vide his order dated 04.08.2016, rejected the joint application filed by the petitioners and fixed the matter for hearing on 07.12.2016, which is after the statutory period of six months of waiting. Hence, Writ Petition (M/S) No. 2433 of 2016 is before this Court.
6. In Writ Petition (M/S) No. 2431 of 2016, the case of the petitioner is that the spouses have agreed that it is not possible for them to remain under the matrimonial relationship, inasmuch as, due to such relationship both the spouses are in continuous mental pressure and, as such, have agreed to severe the relationship on their free will, without there being any undue pressure. Shri Sandeep Kothari, learned counsel for the petitioner prayed that the order dated 13.07.2016 passed by the learned Judge, Family Court, District Udham Singh Nagar in Civil Case No. 306 of 2016 may be set-aside and the statutory p
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
