The statutory period of six months for recording second motion statements in a divorce case filed by mutual consent is directory, not mandatory, and can be waived if the court is satisfied that there is no possibility of reconciliation and the waiting period would only prolong the parties' agony.

CR-158-2023

1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR-158-2023

Date of decision: 11.01.2023

HARPREET KAUR

...Petitioner(s)

vs

GURSIMRAT SINGH

...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA

Present:- Mr. Kanwar Pahul Singh, Advocate

for the petitioner.

***

NIDHI GUPTA, J.

Challenge in the present revision petition is to the order

dated 20.12.2022 passed by learned Additional Principal Judge, Family

Court, Amritsar whereby joint application filed by the parties for waiver

of the statutory period of six months for recording the statements of

second motion, has been declined.

Ms. Vini Mahajan, Advocate appears on behalf of respondent

and files Vakalatnama which is taken on record. Learned counsel for the

respondent has no objection if the present petition is allowed.

The material facts of the case are as follows:-

That, marriage between parties i.e. Harpreet Kaur and

Gursimrat Singh, was solemnized on 29.12.2017, at Dhanju Palace,

Mehta Road, Amritsar. However, they could not live together due to

temperamental differences and they are residing separately since

27.03.2021. Considering the broken status of their marriage, they filed

the petition for seeking divorce by mutual consent under Section 13-B of

the Hindu Marriage Act. Statements of first motion were recorded on

SUNENA

2023.01.16 16:39

I attest to the accuracy and

integrity of this document

CR-158-2023

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18.10.2022 and the case has been adjourned to 20.04.2023 for recording

the statements of the parties of second motion. However, during the

pendency of the petition, a joint application dated 24.11.2022 Annexure

P2, was filed by both the petitioners, thereby seeking waiver of statutory

wait of six months.

Vide impugned order dated 20.12.2022, the above-said

application seeking waiver of statutory wait of six months was dismissed.

Feeling aggrieved by the above-said order, present petition

has been filed.

Now, counsel for both the parties submitted in unison that

due to incompatibility and different temperaments, the parties could not

live together and they are residing separately since 27.03.2021.

Considering the broken status of the marriage, divorce petition by

mutual consent had been filed. All terms of separation have been duly

complied between them. Even, an amount of Rs.10,50,000/- has been

received by the petitioner from the respondent. The custody of the child

is also stated to be with the petitioner.

Learned lower Court has dismissed the application for seeking

waiver of statutory period of six months as it is observed that the

conditions as laid down by the Hon'ble Supreme Court in Amardeep

Singh vs. Harveen Kaur, 2017 (8) SCC 746, have not been complied with.

In Amardeep Singh's case (supra), so relied upon by the

lower Court, the Hon'ble Supreme Court has held as under:-

“19. Applying the above to the present situation, we are of the

view that where the court dealing with a matter is satisfied that a case is made

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out to waive the statutory period under Section 13-B (2), it can do so after

considering the following:

(i) The statutory period of six months specified in Section 13- B(2),

in addition to the statutory period of one year under Section 13B(1) of

separation of parties is already over before the first motion itself;

(ii) All efforts for mediation/conciliation including efforts in terms

of Order 32A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts

Act to reunite the parties have failed and there is no likelihood of success in

that direction by any further efforts;

(iii) The parties have genuinely settled their differences including

alimony, custody of child or any other pending issues between the parties;

(iv) The waiting period will only prolong their agony.

The waiver a