The main legal point established is that the provision of sub-section (2) of Section 13-B of the Hindu Marriage Act is directory and not mandatory, allowing for instant decree of divorce when the court is fully satisfied of the irretrievable breakdown of the marriage.

” This first appeal assails the judgment dated 30.10.2014 passed by Additional Principal Family Court, Gwalior by which a petition for divorce filed by the husband/appellant under Section 13 of the Hindu Marriage Act (for brevity ' Act' ) on the ground of cruelty has been rejected.

2. During the pendency of this case an application (I.A.No.1429/2015) has been moved jointly by the rival parties stating that they may be granted divorce by mutual consent on the terms and conditions as contained in this application.

3. Reading of the said I.A. filed jointly by the rival parties indicates that marriage between the appellant and respondent took place on 24.11.2008 whereafter due to strained relationship, allegations and counter allegations made by both the parties against each other, the matrimonial relationship became sour. The appellant/husband and respondent-wife started living separately since November/December, 2009 and continue to do so till date. The rival parties have further mentioned in the said application that there is no hope of restoration of matrimonial relationship and the marriage is broken down irretrievably. The parties have also agreed to the extent that the appellant/husband has paid an amount of Rs.2,50,000/- to the respondent-wife and the said amount has been received by the respondent-wife without any demur. The application further discloses that mutual understanding is arrived at between the rival parties to take care of the welfare of the child namely Himanshu aged 5-6 years.

4. We have heard the rival parties in person before this Court and after having discussion with them, we find that there is no possibility of resumption of matrimonial relationship. The appellant and respondent who living apart since about 5 years do not wish to stay with each other. In such a situation dismissal of this appeal shall amount, to further agony to the rival parties as they would be compelled to be bound by the wedlock despite neither wanting to do so. The wedlock has turned into a deadlock.

5. Thus, this Court is of the considered view that the marriage in question has broken down irretrievably.

6. The other issue which crops up is as to whether at this appellate stage can this court treat this appeal as an application under Section 13-B of the Hindu Marriage Act for grant of divorce by consent and waive off the minimum cooling period of six months provided under Section 13-B of the Act. In this respect we profitably refer the Division Bench decision of Andra Pradesh High Court in the case of K. Omprakash v. K. Nalini, reported in AIR 1986 Andhra Pradesh 167 (DB). The relevant extract of the above said judgment is reproduced below :-

' 9. .....That question is whether the Legislature intended that S.13-B(2) of the Hindu Marriage Act should be treated as a mandatory provision of law or the Legislature intended that section to be treated merely as a directory provision of law. We have already noticed the language of S. 13-B(2). On first impression it is not impossible to hold S. 13B(2) to be mandatory. As a mandatory provision of law calls for its pound of flesh and requires to be complied strictly and it not being satisfied with offerings of more substantial compliance of its commands, we will have to adjourn this matter for six months and postpone the deliverance to the parties from this deadlock by the that period of time (sic). It is well settled proposition of law that a statutory provision, though mandatory in form, can yet be treated as directory in substance. The question then arises whether there is anything in the text of S. 13-B(2) of its context or purpose or design that calls for S.13-B(2) being interpreted as directory? In our opinion, there are weighty reasons warranting the reading of S.13-B, Cl. (2) as directory. In that context, we must first call attention to the design of the law expressed in its liberalizing tendency of providing relief to parties on the basis of their mutual consent from their