2024:BHC-GOA:791 vinita IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.230 OF 2024 Mr. Vishwas Kawthankar Son of Ramesh Kawthankar Age 41 years, service, Indian National Resident of H.No.695 B.B.

Borkar Road Alto Porvorim Bardez-Goa ….Petitioner.

versus Mrs. Sunita Vishwas Kawthankar alias Sunita Gajanan Vazarkar Daughter of Gajanan Vazarkar Indian National, Age 37 years, service, R/o H.No.324, nave Bhat : Danda Siolim Bardez-Goa …..Respondent.

Mr Clayton Fonseca, Advocate for the petitioner. Mr Kewal Sawant, Advocate for the respondent.

CORAM: BHARAT P. DESHPANDE, J.

DATE: 24^th APRIL 2024 ORAL JUDGMENT.:

1.

Rule

2.

Rule is made returnable forthwith.

3.

Heard finally with the consent.

4.

In the present petition, very sensitive issue and that too with regard to grant of mutual consent divorce is raised. Petitioner and the respondent got married in the year 2016. However within a period of one year, differences arose, matter landed before the Magistrate by filing Domestic Violence cases against the husband by the wife. Subsequently, and by interference of the Court, parties were referred to mediation. Learned Mediator submitted report as successful by drawing terms between the parties. Such consent terms were placed before the learned Magistrate at Mapusa in a Domestic Violence case. Consent terms were duly signed by both the parties along with their Advocates.

5.

Petitioner as well as respondent agreed that they will separate by filing mutual divorce. Petitioner agreed to pay Rs.9,00,000/- as on the date when the mutual divorce is granted. Similarly, wife agreed that she will withdraw all the complaints filed against her husband only on the date when the mutual divorce is granted.

6.

Accordingly, the petitioner and the respondent filed matrimonial petition before concerned Court for grant of divorce by mutual consent under Article 36 of the Law of Divorce. Along with such petition, parties jointly filed an application for waiver of the said period as found mentioned in Article 40 so as to give quietus to the dispute between the parties and to withdraw the proceeding as well as to pay amount agreed between the parties. Learned trial Court, however, refused to waive such period claiming that period of one year as provided under Article 40 is mandatorily to be gone into before confirming the divorce by the mutual consent. Petitioner as well as respondent are therefore, before this Court challenging such decision.

7.

Mr Fonseca appearing for the petitioner and Mr K. Sawant appearing for the respondent would submit that Civil Court is having inherent power to waive such period based on circumstances of each case. Reliance is placed in the case of Amardeep Singh Vs Harveen Kaur, [2017(6) Bom. C.R. 773]

8.

Mr Fonseca submits that principles laid down by the Apex Court though coming out of provisions of Section 13-B(2) of the Hindu Marriage Act, same would be applied with equal force to the matter in hand. He submits that provisions of Article 40 of the law of divorce applicable to State of Goa is only with an intention to give time to the spouses for the purpose of reconciliation or rethinking about the mutual divorce. He submits that matter in hand is quite distinct and different as all efforts for reconciliation or rethinking in living together were already exercised and finally parties decided to apply for mutual divorce. He submits that in such circumstances, and in order to comply with the consent terms, Court could have waived the period of one year so as to give quietus to the dispute and allow the parties to separate from each other. Mr Sawant appearing for the respondent also endorsed the same view and submitted that provisions cannot be stretched to mean that when a marriage is broken to the extent that it is not possible for the parties to live together in future, Court should consider the option of waiving the period.

9.

The scheme found in the Law of Divorce for applying for divorce by mutual consent, Article 36 provides as to how the app