IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
Writ Petition No.1381 of 2010
Rakesh Harsukhbhai Parekh ..
v/s.
1.State of Mah.
2.Niti R. Parekh
CORAM : SMT.ROSHAN DALVI, J.
February, 2010
DATED : 23rd1
Citation; 2010 (7)MH LJ 790;AIR2011Bom34, 2010(4)BomCR820, 2011(3)RCR(Civil)485
1.Rule, returnable forthwith.
2.The
Petitioner
wife.
Respondent
No.2
They married on 20.5.2005.
separately
and
since
19.5.2006.
The
are
husband
and
They started living
Petitioner-husband
filed a Petition under Section 13 of the Hindu Marriage
Act for divorce on the ground of cruelty of Respondent
No.2 on 12.6.2007.
After part evidence was recorded in
the Petition, the parties settled their dispute.
withdrew
allegations
against
one
another
and
They
filed
Consent Terms on 16.12.2009 with regard to the grant of
a
joint
application
for
waiver
Thereafter they made
of
the
6
months
of lump sum alimony to the wife.
divorce for withdrawal of the allegations and the grant
period for acting upon the Consent Terms and obtaining
a divorce by mutual consent under Section 13B of the
Hindu Marriage Act on 14.1.2010.
to
cannot
be
be
rejected
waived
on
and
the
that
ground
the
that the period
Petition has to
be
come
Their application has
ig
adjourned for 6 months.
3.Section 13 of the Hindu Marriage Act is in respect of
grounds
stated
dissolution of a marriage by a decree of divorce on the
therein.
Consequently,
under
that
section upon proof of any of the grounds the marriage
could be dissolved by decree of divorce.
4.Section 13B of the Hindu Marriage Act is in respect of
dissolution of a marriage by decree of divorce upon a
Petition
presented
to
the
District
Court
by
both
parties to a marriage together on the ground that they
have been living separately for a period of one year or
more and that they have not been able to live together
and that they have mutually agreed that the marriage
should be dissolved.
5.Under Section 13B(2), the Court is required to pass a
decree
of
divorce
declaring
the
marriage
to
be
dissolved upon the motion of both the parties made
after 6 months of the presentation of the Petition and
within 18 months thereof.
6.It is on the premise that the application for divorce
by
mutual
consent
which
came
to
be
treated
as
a
Petition for divorce by mutual consent under Section
did
not
grant
13B of the Act, the learned Judge in the impugned order
the
divorce
but
observed
that
the
period.
It must be appreciated that Section 13B was by
Amendment
Act
68
of
the
ig
Petition had to be adjourned for 6 months mandatory
1976
enacted
to
allow
the
parties to file Petitions for divorce by mutual consent
upon the grounds stated therein which are that they are
living separately and are not able to live together.
Section 13B contemplates a Petition initially filed by
the parties.
It would be filed upon the premise that
the parties have decided that they could not and hence
have not lived together but have lived separately.
7.The
provision
period
granted
under
to
Section
such
13B(2)
parties
to
is
down
what
a
Judge
is
respite
reconsider
decision to dissolve their marriage.
lays
the
required
their
The provision
to
do
if
the
Petition is not withdrawn before 6 months to 18 months
statutory period when it remains on the file of the
Court.
If a Petition under Section 13 has remained on
case,
the
parties
require
no
respite
the file of the Court for as long as 3 years as in this
period
to
reconsider their decision to dissolve a broken marriage
in which various allegations based upon the grounds
under Section 13 have been made and later withdrawn
upon seeing reason.
Courts
Act,1984,
which
8.The Court must further consider Section 9 of the Family
enjoins
the
Family
Court
to
consider the alternative mode of reconciliation between
the parties.
A reconciliation may be positive in which
case parties may come together as husband and wife.
If
not, reconciliation by way of amicable settlement of
their dispute by divorce could also be arrived at.
9.Section 89 of the Code of Civil Procedure (CPC), which
applies to the Family Court since it is the Civil Court
under Section 10(1) of the Family Courts Act, further
enjoins
the
Court
to
follow
the
resolution
of
the
dispute by an alternative mode, including the mode of
mediation.
If
that
is
followed,
the
parties
would
settle their dispute and withdraw the allegations and
if in the meantime a period of 6 months has transpired,
the statutory period of respite is availed of by the
parties.
Consequently, the literal interpretation of
Section 13B(2)of the Hindu Marriage Act would not be
required in case of parties filing Consent Terms and
withdrawing the allegations against one another after a
Petition for divorce has been filed more than 6 months
prior to such withdrawal of allegations and filing of
Consent Terms thereunder, be it under Section 13 and
not under Section 13B of the Act.
10.The learned AGP appearing for Respondent No.1-State
tenders a judgment in the case of Anil Kumar Jain vs.
Maya Jain, II (2009) DMC 449 (SC) in which the Supreme
Court allowed such a Petition to be granted under its
powers under Article 142 of the Constitution of India.
The order of the Family Court has not been challenged
on the ground that it could be passed under Article 142
of the Constitution of India.
Even this Court cannot
and is not passing an order under Article 142 of the
Constitution
of
India.
However,
upon
a
harmonious
construction of the aforesaid provisions of the Family
Courts Act, the CPC and the Hindu Marriage Act, 1955,
it
can
be
seen
required to be
that
the
waived .
period
of
respite
is
not
It is the period which has
passed when the Petition was pending under Section 13
of the Hindu Marriage Act.
of
that
Petition
under
It is only upon conversion
Section
13B
of
the
Hindu
Marriage Act that the Petition filed on the grounds of
cruelty making allegations of cruelty is converted into
a Petition where the allegations stand withdrawn upon
11.The
parties,
who
settle
their
dispute,
the parties having settled their disputes.
are
not
required to be penalised for settling their disputes.
They have gone through the process of divorce in the
Court for more than 6 months when the Petition remained
pending.
They have only modified their views upon
settlement of the dispute.
Hence such a Petition,
though for divorce by mutual consent which would be
granted to both parties and not for divorce upon the
grounds under Section 13 of the Hindu Marriage Act, has
lived through 6 months
period in the Family Court
law
requires
Petition
the
parties
remains pending,
the
already. Consequently, that period of 6 months, which
are
acrimonious
allegations
to
is
undergo
undergone;
withdrawn
so
while the
only the
that the
divorce can be granted amicably to both rather than to
one of the spouses.
12.It may be appreciated that any Petition, which is
filed in Court, may or may not be contested.
If it is
uncontested, an ex-parte decree may be passed under
Order IX of the CPC, which applies to Family Courts as
Civil Courts.
A decree of divorce could be passed
under that provision also. That can be passed within
less than 6 months of filing the Petition. That, of
course, would be based upon the allegations made in the
Petition which are not controverted by the Respondent
That
enables
the
Petitioner
to
obtain
a
therein.
decree of divorce.
If those allegations came to be
the
reconciliatory
expected
to
allegations
mode
function,
must
both
in
which
withdrawn, as in this case, and as is desirable under
Family
the parties who
be entitled to
Courts are
withdraw the
a
decree
of
divorce without the burden and restraint which is cast
by Section 13B(2) for parties who appear initially in
the Court together by way of a Petition for divorce by
mutual consent.
13.Consequently, the view expressed by the learned Judge,
considering all the above modes in harmony, is seen to
The impugned order dated 7.1.2010 passed
be erroneous.
by the learned Judge of 7th Family Court at Mumbai is,
therefore, set aside.
The Writ Petition is allowed and
the Petition is remanded to the Family Court to pass
the necessary orders under Section 13B of the Hindu
Marriage Act on the next date of hearing.
Rule is made
absolute accordingly.
14.No order as to costs.
(SMT.ROSHAN DALVI, J.)
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