Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 444 of 2019 Petitioner :- Somiya Respondent :- Principal Judge, Family Court Meerut And Another Counsel for Petitioner :- Sayyed Kashif Abbas Rizvi,
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner and perused the record.
By means of the present petition, the petitioner seeks a direction to the Court below to decide the Matrimonial Petition No. 1352 of 2018 (Somiya vs. Mohit) under Section 13-B of the Hindu Marriage Act filed on 16.7.2018, within the shortest possible time i.e. prior to 27.1.2019 on the ground that the petitioner herein is seeking to remarry and her marriage is to be solemnized on 27.1.2019.
It is contended that the parties to the divorce suit are separated for more than a period of four years and there are no chances of reconciliation between them. An application dated 18.1.2019 was moved by both the parties jointly to done away with the cooling off period of six months provided under Section 13B(2) of the Act, 1955. The said application though kept in the file of the matrimonial petition, but no order has been passed till date.
The pendency of the matrimonial petition is causing prejudice to the petitioner, inasmuch as, her second marriage would be illegal, in case, decree of divorce is not granted prior to the marriage.
Reliance is placed upon the judgment of the Apex Court in Amardeep Singh vs. Harveen Kaur reported in AIR 2017 Supreme Court 4417 wherein it has been held that the statutory period of six months specified in Section 13-B(2) is not mandatory and is only a safeguard against the hurried decision, if there was otherwise possibility of differences being reconciled. It can be waived by the Court where proceedings are pending in exceptional situation.
The object of the said provision is to enable the parties to dissolve a marriage by consent, if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The object is not to perpetuate a purposeless marriage or to prolong the agony of the parties when there are no chances of reconciliation, the Court should not be powerless in enabling the parties to have a better option.
Similar view has been taken by the Apex Court in Akanksha vs. Anupam Mathur [Transfer Petition (Civil) No. 747 of 2018] decided on 25th September, 2018.
Noticing the aforesaid decisions and the fact that both the parties are seeking to rehabilitate themselves with other options available with them, this Court is of the considered view that the Principal Judge, Family Court, Meerut ought to have considered the application dated 18.1.2019 jointly filed by the parties to waive the cooling off period of six months provided under Section 13-B(2) of the Act and to grant the decree of divorce by mutual consent.
The present petition is, therefore, disposed of with the direction to the Principal Judge, Family Court, Meerut, U.P. to take up the application dated 18.1.2019 pending in the Matrimonial Petition No. 1352 of 2018, on 24th January, 2019.
The petitioner shall appear alongwith the opposite party i.e. her husband on the date so fixed before the Court below, alongwith certified copy of this order.
On presentation of the certified copy of this order, the Court below shall decide the Matrimonial Petition No. 1352 of 2018 on the said date itself, in accordance with law.
Order Date :- 21.1.2019 Brijesh