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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

BEFORE

HON’BLE SHRI JUSTICE SHEEL NAGU

&

HON’BLE SHRI JUSTICE DINESH KUMAR PALIWAL

FIRST APPEAL No.950 of 2021

Between:-

VISHAL KUSHWAHA S/O DILIP

KUSHWAHA AGED ABOUT 33 YEARS

OCCUPATION:

GOVERNMENT

SERVANT R/O. SURATGANJ, ITARSI

(MADHYA PRADESH )

…...APPELLANT

(BY SHRI DEEPAK PANJWANI, ADVOCATE )

AND

MRS. RAGINI KUSHWAHA W/O MR.

VISHAL KUSHWAHA, AGED ABOUT

27 YEARS , R/O DEVAL MOHALLA,

TAHSIL SEONI, MALWA, DISTRICT

HOSHANGABAD

(MADHYA

PRADESH).

...RESPONDENT

(BY SHRI ABHAY GUPTA, ADVOCATE)

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Date of hearing :

26.02.2022.

Date of Judgment:

28.03.2022.

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Per: Dinesh Kumar Paliwal, J.

JUDGMENT

This Appeal under section 28 of the Hindu Marriage Act, 1955

has been filed against the judgment and decree dated 23.07.2021

passed by First Additional District Judge, Itarsi, District

Hoshangabad whereby the joint application filed by appellant-Vishal

Kushwaha and her wife Ragini under Section 13(B) of the Hindu

Marriage Act for mutual divorce has been rejected and the divorce

petition has been dismissed on the ground that application has been

filed before prerequisite period of one year under Section 14 of the

Hindu Marriage Act.

2.

A perusal of the application filed under Section 13B of the

Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”)

shows that the marriage was solemnized on 21.02.2019 between the

parties but after some time of marriage their marital relations got

soured as a result whereof they started to live separately. On

15.10.2019 almost after 7 months and 24 days of marriage, they

filed an application seeking mutual divorce under Section 13(B) of

the Act before the Court of District Judge, Itarsi. Both the parties

are living separately since 7 months prior to filing of the application

under Section 13B of the Act. The said application under Section

13B of the Act was registered as RCS No.118/19. The divorce

application filed under Section 13B of the Act was rejected by the

learned District Judge by judgment dated 23.07.2021 as pre-mature

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stating that under Section 14 of the Act, no application for divorce

can be presented before expiry of the period of one year of

marriage. Aggrieved with the said judgment, appellant husband has

preferred the present appeal.

3.

It is relevant to mention here that no application under Section

14 of the Act or an application to grant leave to present the divorce

application with mutual consent before the expiration of the period

of one year since the date of marriage, was filed.

4.

Shri Deepak Panjwani, learned counsel for the appellant, has

placed reliance on the judgment of Priyanka Maity (Ghosh) vs. Shri

Sabyasachi Maity, 2012 AIR (Cal) 243 and argued that under

Section 14 of the Act a petition for mutual divorce could be

entertained even before the expiry of one year from the date of

marriage. It is not mandatory to require compliance with

mathematical precision and to warrant rejection for non filing of

application under Section 14 of the Act as provision of Section

14(1) of the Act is not mandatory. The provisions are directory in

nature. As petition itself was pending before the Court for more than

a year and that is substantial compliance of Section 14(1) of the Act,

learned trial Court has committed an error in dismissing the mutual

divorce application on the ground that the period of one year

provided under Section 14 of the Act has not expired. He further

submitted that the period of one year since the date of presentation

of the application by the parties to the marriage can be waived by

the Court i