Smt Sandhyashree S Vs Nil

SMT SANDHYASHREE S, WIFE OF PRASANNAKUMAR, AGED ABOUT 27 YEARS, RESIDING AT RAYALPAD VILLAGE AND POST, SRINIVASPURA TALUK, KOLAR(D), KARNATAKA - 563 134.

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Digitally signed by CHAITHRA P Location: High Court of Karnataka

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SRI. PRASANNA KUMAR, SON OF KAIYAPPA, AGED ABOUT 38 YEARS, RESIDING AT NO.91, IBASAPURA VILLAGE AND POST, CHANNARAYAPATANA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL, KARNATAKA - 562 129. …PETITIONERS

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(BY SRI. CHETHAN C.,ADV FOR SRI. VASUNDARA T. P., ADVOCATE)

AND:

NIL

…RESPONDENT

THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUION OF INDIA PRAYING TO SETTING ASIDE THE IMPUGNED ORDER DATED 30.01.2025 PASSED IN MC NO.83/2024 BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC DEVANAHALLI AS PER ANNX-D AND THEREBY ORDERED TO ALLOW THE IA FILED

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UNDER SECTION 13-B (2) OF HINDU MARRIAGE ACT READ WITH SECTION 151 OF CPC 151 AS PER ANNX-C.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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This petition is filed by the petitioners who have filed a divorce petition under Section 13-B of the Hindu Marriage Act, 1955, seeking for dissolution of their marriage by way of mutual consent petition filed on 07.11.2024. Along with the main petition, an application came to be filed under Section 13B(2) of the Hindu Marriage Act, seeking to waive of six months statutory waiting period. The said application is accompanied by affidavits of petitioner Nos.1 and 2 i.e., wife and husband, whereby they have in detail narrated with regard to date of the marriage, duration the marriage sustained, period of unhappiness during the course of togetherness in matrimony and constant tension between both the parties.

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It is also stated that both the parties started residing separately since February 2017, the marriage having been solemnized on 09.05.2016. The parties have stated on oath that there has been no cohabitation, contact and

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communication, pursuant to their separation from February 2017.

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It is also stated that they have spent more than seven years carrying on the burden of the strained relationship of husband and wife and they have been taking steps to put an end to their relationship peacefully. Hence, they have filed the petition for divorce by way of mutual consent to part ways rather than waste their precious time. It is also stated that they have exhausted all means of salvage of marriage and since there was no hope of reconciliation between themselves and despite having undergone pain and agony in the relationship, they are interested in moving on in life by putting an end to this matrimonial relationship. Accordingly, filed application seeking to waive the waiting period of six months as stipulated under the Act.

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It is also stated by both the petitioners that the waiting period of six months will only prolong the agony and no positive outcome of rejoining prevailed upon the parties. Rather it will adversely impact their career, health, wellness and wellbeing of both the husband and wife. Under these circumstances, both the petitioners have filed their respective

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affidavits in support of the application to waive of the waiting period of six months. They also relied upon the judgment of Hon'ble Apex Court in the case of Amardeep Singh Vs. Harveen Kaur¹ . On the said application being filed by the petitioners, the learned Senior Civil Judge and JMFC, Devanahalli, has rejected the application for waiving the six months period on the ground that no reason is stated for waiving of the cooling period. It is this order that is questioned by the petitioners in this petition.

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I have heard learned counsel for the petitioners on careful perusal of the affidavits annexed to the petition, the application is accompanied by the affidavits of both petitioners No.1 and 2, in which it is clearly stated by the petitioners that it is not possible for them to live amicably together. They have made all efforts for reconciliation. There has been no cohabitation whatsoever, since February 2017 and for more than seven years they have not been in any relationship or cohabitation or communication and they intended to put an end to this relationship in a peaceful manner without any claims

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1 (2017) 8 SCC 746

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against each other. Accordingly, they have filed the petition for divorce by way of mutual consent.

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It is also stated in the affidavit very clearly at paragraph No.6 of the affidavit annexed to the application mentioned as I.A.No.1, whereby it clearly stated that if the waiting period of six months is strictly enforced, it will only prolong the agony and nothing positive will ever come out of such delay and adversely impact the career, health and wellness of both parties.

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Further, it is stated that by condoning the waiting period no hardship or inconvenience would be caused either of the parties. This aspect has been totally ignored by the learned Senior Civil Judge and JMFC, Devanahalli, while considering this application mentioned as I.A.No.1. The Hon'ble Apex Court in the case of Amardeep Singh (Supra), has dealt with this very aspect of condoning the waiting period of six months and how it is to be treated and decided. At paragraph No.14 of the said judgment it is stated at the instance of the amicus curie appointed by the Hon'ble Apex Court that the Court should consider the following questions while dealing with an application under Section 13-B(2) of Hindu Marriage Act.

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"i. How long parties have been married?

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ii. How long litigation is pending?

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iii. How long they have been staying apart?

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iv. Are there any other proceedings between the parties?

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v. Have the parties attended mediation/conciliation?

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vi. Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?"

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In paragraph No.20 of the very same judgment, this

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Court has held as under:

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"20. Since we are of the view that the period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation."

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Considering these aspects, it is no more res integra

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that while dealing with an application under Section 13-B(2) of Hindu Marriage Act, an application made for condoning the waiting period of six months the Courts will have to consider the above said aspects in a pragmatic manner rather than applying hyper technicalities and as held by the Hon'ble Apex Court, it is not mandatory but it is directory for the Court dealing with such application to consider the said application on

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the facts and circumstances of each case and what is more important is to consider, whether the parties have genuinely made efforts to reconcile, whether the parties have made any provision for payment of maintenance or alimony and if waiting period of six months would prolong their agony or whether it would lead to any reconciliation process. All these aspects have been clearly and categorically explained in their affidavits filed by both the parties to the application for condoning the waiting period, which ought to have been taken note of rather the Civil Judge ignored the same and has come to a conclusion that no such reason is forthcoming with regard to waive of the cooling period. I am in agreement with the learned counsel for the petitioners that proper reasons have been given in the affidavits to waive of waiting period of six months and the same are valid reasons.

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Under the circumstances, the trial Court ought to have condoned the waiting period of six months and proceeded further in the matter rather than rejecting it mechanically without even looking into the contents of the affidavits, which have very clearly stated that they want to condone and waive of the waiting period of six months, as it would not be fruitful

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and neither would it re-ignite the parties to join or reconcile their differences.

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Looking into the orders passed by the Trial Court, this Court is perforced to make an order/direction to the Family Courts/Civil Courts dealing in matrimonial proceedings where applications are filed seeking to condone/waive of the waiting period of six months as already held by the Hon'ble Apex Court in the case of Amardeep Singh (Supra). Despite the above said Apex Court judgment the Courts are taking hyper technical views and dismissing such applications. In view of the alarming rate of divorce petitions being filed in several Courts across the country and when petitions are filed for divorce on the ground of mutual consent without making allegations against each party, it would be in the interest of both the parties and also the Court to assist the parties putting an end to their emotional ordeal rather than prolonging the matter further.

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However, the parties would have to clearly make an effort for reconciliation and when such a process of reconciliation is not possible and genuine efforts are made to reconcile and it is shown that any further delay or prolonging the matter would cause more hardship, inconvenience, agony

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and pain to the parties, the Court should intervene and waive of waiting period by allowing such applications.

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Under the circumstances, I pass the following:

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ORDER

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i) The petition is allowed .

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ii) The impugned order dated 30.01.2025 passed in M.C.No.83/2024 by the learned Senior Civil Judge and JMFC, Devanahalli, mentioned as I.A.1 filed under Section 13-B(2) of the Hindu Marriage Act, 1955 read with Section 151 of CPC, is hereby set aside .

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iii) Consequently, mentioned as I.A.1 filed under Section 13-B(2) of Hindu Marriage Act, read with Section 151 of CPC to waive of six months statutory period is hereby allowed. The waiting period of six months is waived of by this Court.

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iv) The learned Senior Civil Judge and JMFC, Devanahalli, is hereby directed to dispose of the petition expeditiously.

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The directions to the Family Courts and Trial Courts dealing with divorce in matrimonial proceedings are as under:

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i. To strictly follow and abide by the judgment of the

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Apex Court in Amardeep Singh Vs. Harveen Kaur (supra).

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ii. Courts to not adopt hyper technical approach by rejecting the application to condone the waiting period of six months, when reasons are assigned.

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iii. Courts to adopt pragmatic approach in favourably considering such applications when marital relationship is beyond scope of reconciliation.

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Registry is directed to send a copy of this order to all the Principal District Judges across the State including the Family Courts with a request to circulate the same among all the judicial officers dealing with divorce in matrimonial proceedings in their respective Units.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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AMA List No.: 1 Sl No.: 57

Smt Sandhyashree S v. Nil

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Smt Sandhyashree S v. Nil

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