Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 6773 of 2019 Petitioner :- Abhisheik Deo Respondent :- Smt. Geetika Sharma And Another Counsel for Petitioner :- Amit Saxena Counsel for Respondent :- Ajay Kumar Srivastava
Hon'ble Manoj Kumar Gupta,J.
The petitioner and respondent no.1 have filed a petition before Principal Judge, Family Court, Ghaziabad for grant of a decree of divorce by mutual consent under Section 13-B (1) of Hindu Marriage Act, 1955. The petition was filed on 16.7.2019. The court, on that date, after examining the parties, who were present, fixed 17.1.2020 for the second motion.
The parties filed a joint application Paper No.16-C-2 praying for dispensing with the period of 6 months provided under Section 13-B of the Act. The said application has been directed to be put up on 17.1.2020, the date already fixed.
The petitioner has now approached this Court raising a grievance that the marriage could be dissolved after waiving the statutory period of six months as laid down by the Supreme Court in Amardeep Singh Versus Harveen Kaur, 2017(8) SCC 746. It is urged that the trial Court, without considering the factors laid down by the Supreme Court for waiving the statutory period has postponed the consideration of the application on merits in a routine course.
The Supreme Court in the said decision has laid down that period of six months provided under Section 13-B is directory in nature and could be waived, after considering the following factors : -
"i) the statutory period of six months specified in Section 13B(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 XXXIIA 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."
Having regard to the law laid down by the Supreme Court, I am of the opinion that the Court below ought to have applied its mind to the factors mentioned above. The trial Court is directed to consider the application having regard to the factors stipulated by the Supreme Court in Amardeep Singh (supra) within three weeks of the date of production of certified copy of this order.
The petition stands allowed to the extent indicated above.
(Manoj Kumar Gupta, J) Order Date :- 26.9.2019 SL