Court No. - 37

Case :- MATTERS UNDER ARTICLE 227 No. - 12190 of 2022

Petitioner :- Lalit Kumar

Respondent :- Nirmala @ Ravina

Counsel for Petitioner :- Ashwani Kumar Yadav

Hon'ble Ajit Kumar,J.

Heard Sri Ashwani Kumar Yadav, learned counsel for the petitioner.

By means of this Petition filed under Article 227 of the Constitution, petitioner

wants expeditious disposal of the Matrimonial Case No. 405 of 2018 pending

before the Additional Principal Judge, Family Court, Budaun for mutual divorce

under Section 13-B of the Hindu Marriage Act, 1955. Counsel for the petitioner

submits that this Petition was jointly filed by the parties as they want to be

mutually separated and rehabilitate themselves after mutual separation/divorce.

It is submitted by learned counsel for the petitioner that both the parties have not

only appeared in the case but have even filed their respective affidavits that

mutual divorce may be granted, however, family court has not disposed of the

matter as yet and has been fixing one date or the other. Counsel for the petitioner

has placed reliance upon the judgement of the Supreme Court in the case of

Amardeep Singh vs. Harveen Kaur (2017) 8 SCC 746 and submits that even the

cooling off period is over. Since the Petition has been field in the year 2018 so

there is no more any statuary bar as far as disposal of the matrimonial case under

Section 13-B of the Act, 1955 is concerned.

Having heard the learned counsel for the petitioner and having perused the

record, I find that the Court has been fixing matter for the purposes of cross-

examination repeatedly. This Court fails to understand as to when the mutual

divorce petition has been filed under Section 13-B of the Hindu Marriage Act

and both the parties have put in appearance and have filed their personal

affidavits that the mutual divorce be granted, why the Court has been fixing

dates one after another for the purposes of cross-examination.

The parties have shown their intention to mutually divorce themselves and to

rehabilitate and so the spirit of Section 13 B is lost, if the matter is lingered on

for no justifiable reason.

In the instant case, I find that the petition was filed in the year, 2018 and now we

are in the year 2023.

The Principal Judge, Family Court has unnecessarily lingered on the matter.

Not only this case, but I have found in several petitions coming up before this

Court every day wherein the Petition under Section 13-B though have been

jointly moved with an application to wave off the cooling off period prescribed

for under the Statute and yet family courts do not grant waiver and instead fix

long dates for disposal of the Petition.

In Amardeep Singh's case (Supra), the Supreme Court has primarily dealt with

two issues:

(a) Whether the provision as contained under Section 13-B(2) of the Hindu

Marriage Act, 1955 is mandatory or directory?; and

(b) Whether the cooling off period prescribed for under the said sub-section can

be waved off even in the event cooling off period has not expired?

While dealing with the first issue, the Court deliberated upon the aims and

objects behind the incorporation of provisions of Section 13-B vide Amending

Act No. 68 of 1986 and the relevant case laws with regard to the powers of the

Supreme Court under Article 142 of the Constitution viz a viz provision

contained under Section 13-B (2) of the Act, 1955 and the principles related to

the rules of interpretation as to the provision, in order to hold the provision to be

directory and not mandatory. Vide paragraph nos. 16, 17 and 18, the Court held

thus:

"16. We have given due consideration to the issue involved. Under the traditional Hindu Law,

as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be

dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By

way of amendment in the year 1976, the concept of divorce by mutual consent was

introduced. However,