1. Heard Sri Kapil Kumar, learned counsel for the petitioner and Sri Bhavishya Sharma, learned counsel for respondent.
2. The petitioner has preferred the present petition under Article 227 of the Constitution of India inter alia with the following prayer:-
"(i) Issue an order or direction to the respondent No.2 to decide the Original Suit No.2208 of 2020 (Priyanka Kumari Vs. Nitin Srivastava) under Section 13-B of Hindu Marriages Act within stipulated period prescribed by this Hon?ble Court."
3. Facts in brief as contained in the petition are that marriage of the petitioner was solemnized with respondent No.1 namely Priyanka Kumari on 23.11.2018 according to Hindu customs and rituals without any dowry. Due to wedlock between the petitioner and the respondent No.1, a female child namely Yashika Srivastava was born on 06.09.2019 who is in custody of petitioner. It is stated in the petition that after some time of marriage, respondent No.1 Priyanka Kumari wanted to live separately from the family member of her husband, when the petitioner refused to live separately, she went her parental home. It is stated in the plaint that the petitioner and respondent are living separately since 27.11.2019 and despite several efforts of mediation, they are agreed that they would not live as husband and wife. The petitioner and the respondent No.1 reached on the conclusion to dissolve their marriage through mutual agreement on 04.12.2020. In this regard, a joint plaint was filed by the petitioner as well as the respondent No.1 in the Court of Principle Judge, Family Court on 04.12.2020. It is stated in the plaint that the first party will call off its litigation which were instituted against the petitioner and the husband will pay one time alimony, i.e., Rupees Five lacs in the shape of Bank Draft.
4. It is argued that though the plaint was filed for dissolution of marriage through mutual consent but the Court below is not passing order on the same due to certain restrictions made in Section 13(b)(2) of the Act, 1955. Counsel for the petitioner relied upon a judgement a delivered by Hon?ble Supreme Court in the case of Amar Deep Singh Vs. Harveen Kaur reported in 2017 SC 4417. It is argued that it has already been held by the Hon?ble Supreme Court in aforesaid case that the period mentioned in the Section 13(b)(2) of the Act, 1955 is not mandatory and it is only directory.
5. Heard learned counsel for the parties and perused the record. With the consent of learned counsel for the parties, the matter is heard and decided finally at the admission stage itself.
6. It appears from perusal of the record that the marriage was solemnized between the parties on 23.11.2018 but due to certain dispute between the parties, they were living separately since 27.11.2019. In the meanwhile, family members were tried two times to conciliate the matter between them but they failed, thereafter on 04.12.2020 a case under Section 13(b) of the Act, 1955 for divorce has been filed with mutual consent before the Principal Judge, Ghaziabad. It is provided under Sub Clause ii of Sub Section B of Section 13 that 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 can pass a decree of divorce. In the case of Amar Deep Singh (supra), it has been held by the Apex Court that the provisions of the aforesaid Section is not mandatory and only directory in nature. Section 13B 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."
7. 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 Amar Deep Singh (supra) 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."
8. In the facts and circumstance of the case, the petition is finally disposed of directing parties to move a joint application before the Family Court within a period of three weeks from today. If such an application is filed, the Principle Judge, Family Court is directed to pass appropriate orders on the application filed by the parties for dissolution of marriage with mutual consent in terms of the law laid down by the Hon'ble Supreme Court in the case of Amar Deep Singh (supra) most expeditiously and preferably within a period of two months from the date of filing of application indicated hereinabove.
Order Date :- 20.1.2021 saqlain