Vakalatnama filed by Mr. Ram Babu Singh, Advocate, on behalf of sole respondent is taken on record.
Heard learned counsel for the petitioner and Mr. Ram Babu Singh, counsel for the respondent.
The present petition under Article 227 of the Constitution of India has been filed by Smt. Ekta Agarwal with the prayer to direct the Principal Judge, Family Court, Sambhal situated at Chandausi to decide the Hindu Marriage Petition No.419 of 2020 (Mohit Gupta Vs. Smt. Ekta Agarwal) filed under Section 13-B of the Hindu Marriage Act within a reasonable period.
It is argued by counsel for the petitioner that the marriage between the parties were solemnized on 15.2.2015, however due to certain differences arose between the parties initially a suit was filed under Section 9 of the Hindu Marriage Act by the husband namely Mohit Gupta against Smt. Ekta Agarwal. It is further argued that the petitioner and respondent are living separately for last more than two years and after some time a decision was taken by the parties to file a mutual divorce petition as provided under Section 13-B of the Hindu Marriage Act. The aforesaid application was filed in the court below on 03.12.2020, which was numbered as Original Suit No.419 of 2020 (Mohit Gupta Vs. Smt. Ekta Agarwal). The said suit was admitted and notices were issued to the other side fixing 05.05.2021. Immediately thereafter an application dated 09.02.2020 was filed by the parties before the court below to exempt the period of six months in view of the law laid down by the Supreme Court in the case of Nikhil Kumar Vs. Rupali Kumar in SLP (c) No.12161 of 2016. In view of the law laid down by the Supreme Court on the said application, order dated 09.12.2020 was passed stating therein that between the parties a criminal case under Section 498-A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act is going on. It is further stated that the necessary directions be only given on the aforesaid applications only after the parties make an agreement to withdraw all the pending cases.
It is argued by Sri Ram Babu Singh, counsel for the respondent that his client is ready to withdraw all the pending cases.
It is admitted between the parties before this Court that parties are ready to withdraw all the pending cases between them within a period of three weeks from today. If all the cases have been withdrawn then parties will make a fresh application before the court concerned for mediation. Section 13-B of the Act, 1955 is reproduced below:-
"13B Divorce by mutual consent.- (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section(1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."
After pronouncement of the judgement by the Supreme Court in the case of Amar Deep Singh (supra), various judgements were pronounced by the different High Courts including this Court. Insofar as the judgement delivered in the case of Amardeep Singh Vs. Harveen Kaur reported in 2017 SC 4417 is concerned, following paragraphs are relevant, they are reproduced below:-
"18. 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 out to waive the statutory period under Section 13B(2), it can do so after considering the following:
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 re-unite 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.
19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.
21. Since we are of the view that the period mentioned in Section 13B(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."
The parties are directed to file a joint application before the Principal Judge, Family Court, Sambhal with the prayer to send the matter for mediation/conciliation within three weeks from today. If such an application is filed, Principle Judge, Family Court will send the matter for mediation/conciliation within two weeks thereafter. If it is found that the mediation has been failed between the parties and there is no chance of cohabitation or rehabilitation then the Principle Judge, Family Court will pass order on the application of the petitioners within one month from the date of order passed by the mediation/conciliation center in the light of Amar Deep Singh (supra) .
With the aforesaid observations, the petition is disposed of. No order as to costs.
Order Date :- 28.1.2021 Pramod Tripathi