ORDER

The present petition under Article 227 of the Constitution of India had been preferred against order dated 15.09.2023 passed by Additional Family Court Judge, Gwalior, in HMA Case No.1019A of 2023, refusing the prayer of the petitioner - husband and the respondent - wife to waive the requirement under Section 13B(2) of the Hindu Marriage Act, 1955 to make the motion for a decree of divorce after at least six months from the date of filing the petition for divorce by mutual consent under Section 13B (1) of the said Act.

The petitioner and the respondent, both of whom are educated and well placed in life, were married according to Hindu ties on 21.04.2015. Admittedly, on account of irreconcilable differences, the petitioner and respondent separated on 07.09.2015. Thereafter, on 26.07.2023, the petitioner and the respondent filed a petition in the Court below under Section 13B of the Hindu Marriage Act for a decree of divorce by mutual consent. Section 13B of the Hindu Marriage Act reads as under:

“13B Divorce by mutual consent.

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

In terms of Section 13B(1) of the Hindu Marriage Act, the parties to a marriage might file a petition for dissolution of marriage, for decree of divorce by mutual consent, on the ground that that they have been living separately for a period of one year or more, and that they have not been able to live together and have mutually agreed that the marriage should be dissolved.

Sub-section (2) of Section 13B of the Hindu Marriage Act provides that the Court shall pass a decree of divorce, declaring the marriage to be dissolved with effect from the date of the decree, on the motion of both the parties, made not earlier than six months after the date of presentation of the petition referred to in subsection (1) of Section 13B, but not later than 18 months after the said date, after making necessary enquiries, if the petition is not withdrawn in the meantime.

Section 14 provides that notwithstanding anything contained elsewhere in the Hindu Marriage Act, it shall not be competent to the Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless on the date of presentation of the petition, one year has elapsed since the date of marriage.

In terms of the proviso to Section 14, the Court may, on an application made to it, in accordance with such rules as may be made by the High Court, allow a petition to be presented before one year has elapsed since the date of marriage, on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. In this case, the petition under Section 13B was filed much after one year had elapsed from the date of marriage. On 26.07.2023, the petitioner and the respondent moved an application before the Family Court, seeking waiver of the six months waiting period under section 13B(2) of the Hindu Marriage Act, to make the motion fo