IN THE HIGH COURT OF ORISSA, CUTTACK

W.P.(C) No.19446 of 2025

(In the matter of an application under

Articles 226 and 227 of the Constitution of India)

Aliva Das ....... Petitioner

-Versus-

Biswajit Das ....... Opposite Party

Advocate for the parties

For Petitioner : Mr. S.P. Barik, Advocate

For Opposite Party : None

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CORAM: JUSTICE SANJAY KUMAR MISHRA

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Date of Hearing & Judgment: 07.08.2025

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S.K. Mishra, J

1. The issue involved in the present writ petition is regarding legality of order dated 24.04.2025 as at Annexure-3, passed by the learned Judge, Family Court,

Cuttack in C.P. No.632 of 2023, vide which the proceeding initiated under Section 28(2) of the Special Marriage Act, 1954 for divorce by mutual consent was dropped by the learned Court below on technical ground that the same is pending for more than 18 months. Since the present Opposite Party is also one of the Petitioners in C.P. No.632 of 2023, the matter is taken up for hearing and disposal at the stage of admission without noticing the Opposite Party-

Husband.

2. Heard Mr. Barik, learned Counsel for the Petitioner.

3. Admittedly, C.P. No.632 of 2023 was preferred by the Petitioner-wife so also Opposite Party-husband by filing a joint application under Section 28(2) of the Special Marriage Act, 1954 for passing a decree to dissolve the marriage between them.

4. As is revealed from the impugned order dated 24.04.2025, the learned Court below dropped the said proceeding referring to Section 13(B)(2) of the Hindu Marriage Act, 1955 on the ground that 18 months have already elapsed. It is further revealed from the said order dated 24.04.2025 that on the said date, the Petitioner No.1, who is the present writ petitioner, was present, whereas the Petitioner No.2(present Opposite Party) remained absent. However, the learned Counsel for the Petitioner No.2 moved an application on the said date for time on the ground of his ailment. The said petition stood rejected and the proceeding in C.P. No.632 of 2023 was dropped on presumption that the Petitioners are not interested to proceed with the said case, with further observation that 18 months have already elapsed in between.

5. Learned Counsel for the Petitioner submits, though joint application for divorce by mutual consent was moved under Section 28 (2) of the Special Marriage, Act, 1954, but the learned Court below, referring to Section 13(B)(2) of the Hindu Marriage Act, 1955, dropped the said proceeding on the ground that 18 months have already elapsed in the meantime.

6. Relying on the judgment of this Court in 2004 (II) OLR 172 (Debmeet Patro Vs. Family Court, Cuttack and another), learned Counsel for the Petitioner further submits, the provisions enshrined under Section 28(2) of the Special Marriage Act, 1954, which is pari materia to Section 13(B)(2) of the Hindu Marriage Act, 1955, is directory, not mandatory. The learned Court below should not have dropped C.P. No.632 of 2023 despite presence of the Petitioner-wife and moving an application for time by the Petitioner No.2-husband on medical ground. Accordingly, he prays for quashing of the said order dated 24.04.2025 and direct the Court below to proceed further on merit and conclude the said proceeding at the earliest.

7. Though it has not been pleaded so, a query being made, learned Counsel for the Petitioner further submits, in the office note in C.P. No.632 of 2023, some defects were pointed out by the office of the learned Court below and the parties were directed to remove the defects. Because of some unavoidable circumstances, the defects could not be removed and the matter got lingered beyond 18 months, as prescribed under Section 28 (2) of the Special Marriage Act, 1954.

8. In view of such submission made by learned Counsel for the Petitioner, on examination of the provisions under Section