# Priyanka Chauhan v. Principal Judge, Family Court, G.B. Nagar & Anr

- **Citation:** (2021) 6 ILRA 105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** First Appeal (D) No. 32 of 2021
- **Bench:** Mahesh Chandra Tripathi, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/priyanka-chauhan-v-principal-judge-family-court-g-b-nagar-anr-46998
- **Pages:** 12

## Headnote

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13-B(2) - Family Courts Act,
1984 - Section 19 - Matrimonial dispute
- Irretrievable break down - Divorce by
mutual consent - Cooling period of 6
months - Mandatory or Directory -
Waiver, when can be granted - Both
parties are literate and decided with full
conscious mind that they have to be
separated - No force, fraud or undue
influence found - Wife remained in her
matrimonial house only for four days
and they are living separately for more
than one year - No consummation of
marriage - No chance of reconciliation -
Held, Cooling off period of six months is
directory with certain conditions - It can
be
waived
by
the
court,
where,
proceedings are pending, in exceptional
situation
-
When
marriage
has
irretrievably broken down, such marital
relationship can be dissolved which is
already
dead,
with
a
view
to
do
complete justice between the parties -
Application to waive the cooling period
of six months, allowed. (Para 19, 20, 31,
32 and 33)
First Appeal allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,919 of 40,802. This is a partial read: ask again with offset=39919 for what follows._

6 All. Priyanka Chauhan Vs. Principal Judge, Family Court, G.B. Nagar & Anr.
105
of the trial Court is set aside. Their bail
bonds are discharged as both of them are
on bail.

65. The appeal of Sudhir Kumar
Verma @ Mukesh Verma and Santosh
Kumar Singh is allowed.
----------
(2021)06ILR A105
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

First Appeal (D) No. 32 of 2021

Priyanka Chauhan ...Appellant
Versus
Principal Judge, Family Court, G.B. Nagar
& Anr. ...Respondents

Counsel for the Appellant:
Sri Vinay Kumar Khare, Sri Sharvesh Kumar
Pandey

Counsel for the Respondents:
Sri Vinod Singh

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13-B(2) - Family Courts Act,
1984 - Section 19 - Matrimonial dispute
- Irretrievable break down - Divorce by
mutual consent - Cooling period of 6
months - Mandatory or Directory -
Waiver, when can be granted - Both
parties are literate and decided with full
conscious mind that they have to be
separated - No force, fraud or undue
influence found - Wife remained in her
matrimonial house only for four days
and they are living separately for more
than one year - No consummation of
marriage - No chance of reconciliation -
Held, Cooling off period of six months is
directory with certain conditions - It can
be
waived
by
the
court,
where,
proceedings are pending, in exceptional
situation
-
When
marriage
has
irretrievably broken down, such marital
relationship can be dissolved which is
already
dead,
with
a
view
to
do
complete justice between the parties -
Application to waive the cooling period
of six months, allowed. (Para 19, 20, 31,
32 and 33)
First Appeal allowed. (E-1)
Cases relied on :-
1. Jagraj Singh Vs Birpal Kaur; (2007) 2 SCC
564
2. Amardeep Singh Vs Harveen Kaur; (2017) 8
SCC 746
3. R. Srinivas Kumar Vs Shametha; (2019) 9
SCC 409
4. Archi Agarwal Vs Principal Judge, Family
Court, Lucknow; 2019 (134) ALR 488
5. Anil Kumar Jain Vs Maya Jain (2009) 10 SCC
415
6. Devinder Singh Narula Vs Meenakshi Nangia;
(2012) 8 SCC 580
7. K. Thiruvengadam Vs Nil; (2007) 5 CTC 870
8. Miten Vs U.O.I.; (2008) 5 Mah LJ 27
9. Sushama Vs Pramod; (2009) 81 AIC 599
(Bom)

(Delivered by Hon'ble Mahesh Chandra Tripathi,
J. & Hon'ble Sanjay Kumar Pachori, J.)

1. Heard Shri Pankaj Agarwal,
learned counsel for the appellant (wife) and
Ms. Utkarshni Singh, learned counsel for
second respondent (husband).

2. The exemption application is
allowed. Let the appeal be given regular
number.

3. Present first appeal has been
preferred assailing the validity of order
106 INDIAN LAW REPORTS ALLAHABAD SERIES
dated
12.1.2021
passed
by
Incharge
Principal Judge, Family Court, Gautam
Budh Nagar in Divorce Petition No. 592 of
2020 Smt. Priyanka Chauhan v. Saurabh
Chauhan, by which application 17/C has
been rejected by learned Family Court
without
assigning
any
reason.
The
application 17/C has been filed by the
appellant and second respondent supported
with a joint affidavit 18/C for waiving six
months statutory period for second motion
before granting a decree for mutual
divorce.

4. The question, which arises for
consideration in the instant appeal under
Section 19 of the Family Courts Act is
whether the minimum period of six months
stipulated under Section 13-B(2) of The
Hindu Marriage Act, 19551 for motion of
passing of decree of divorce on the basis of
mutual consent may be relaxed in any
exceptional situation.

5. The brief facts leading to the
present appeal are that, a Divorce Petition
for a decree of dissolution of marriage by
mutual consent, was filed by the appellant
and second respondent under Section 14 of
the Act which was initially registered as
Miscellaneous Case No. 89 of 2020, after
expiry of one year from the date of
marriage, registered as Original Suit. A
joint application 17/C under sub-section (2)
of Section 13-B the Act, along with joint
affidavit 18/C has been filed by the parties
stating that the marriage of appellant and
second respondent was solemnized on
11.12.2019 with Hindu rites and rituals.
The appellant is resident of Rohini, Delhi,
whereas the second respondent is resident
of Noida, Gautam Budh Nagar. It is
contended that from the date of marriage
the appellant lived only four days at her
matrimonial house and from 16.12.2019 the
appellant started residing at her parental
house at New Delhi. On account of
temperamental and ideological differences
the marriage could not be consummated
and both are residing separately from
16.12.2019. It is contended that various
efforts were made by the family members
of both the parties and their well wishers
but they could not arrived at settlement to
live together a happy married life. When all
the efforts for reconciliation stands failed,
they ultimately arrived into a settlement in
writing dated 24.7.2020 for taking mutual
divorce. In view, thereof, the details of
articles mentioned in Schedule-A of the
mutual settlement dated 24.7.2020 was
handed over to the appellant in presence of
all the well-wishers. Through mutual
settlement dated 24.7.2020 it was further
agreed that the articles mentioned in
Schedule-B of the agreement shall be put
into custody of one Sudhir Kumar son of
Sri Jhanda Singh being closed relative and
well-wisher of both the parties, which shall
be handed over to the appellant after the
second motion of divorce petition and
recording of statement of appellant in
divorce petition to be filed by mutual
consent. It is being claimed that without
there being any undue influence, threat or
coercion the couple decided to dissolve
their marriage by a decree of divorce.

6. The Family Court by the impunged
order rejected the application 17/C on the
ground that till date no effort has been
made by the court for reconciliation and
mediation between the parties, without
considering the peculiar facts of the case.
While they pleaded that marriage could not
be consummated due to temperamental and
ideological
differences
and
both
are
residing separately from 16.12.2019 i.e.
more than one year from the marriage; all
the efforts for reconciliation stands failed;
6 All. Priyanka Chauhan Vs. Principal Judge, Family Court, G.B. Nagar & Anr.
107
they arrived into a settlement in writing for
taking a mutual divorce, articles mentioned
in Schedule-A of the mutual settlement
dated 24.07.2020 was handedover to the
appellant and the articles of both the parties
as mentioned in Schedule-B of the
settlement put into the custody of one
Sudhir Kumar; the parties have genuinely
settled their differences including alimony
and the statutory period of one year of
separation of parties is already over.

7. Section 23 of the Act also provides
the procedure regarding the effort to make
endeavour to bring about a reconciliation
between the parties. Sub-section (1) (bb) of
Section 23 of the Act provides that before
proceeding to grant any relief under this
Act, the court is to be satisfied that a
divorce is sought on the ground of mutual
consent, such consent has not been
obtained
by
force,
fraud
or
undue
influence.

8. Hon'ble the Supreme Court has
consistently taken the view that recording
of reasons is an essential feature of
dispensation of justice. A litigant who
approaches the Court with any grievance in
accordance with law is entitled to know the
reasons for grant or rejection of his prayer.
Reasons are the soul of orders. Nonrecording of reasons could lead to dual
infirmities; firstly, it may cause prejudice to
the affected party and secondly, more
particularly,
hamper
the
proper
administration of justice. These principles
are not only applicable to administrative or
executive actions, but they apply with equal
force and, in fact, with a greater degree of
precision to judicial pronouncements. A
judgment without reasons causes prejudice
to
the
person
against
whom
it
is
pronounced, as that litigant is unable to
know the ground which weighed with the
Court in rejecting his claim and also causes
impediments in his taking adequate and
appropriate grounds before the higher
Court in the event of challenge to that
judgment.

9. It is well settled position of law that
failure to give reasons amounts to denial of
justice. Reasons are live links between the
mind of the decision taker to the
controversy in question and the decision or
conclusion arrived at. Reasons substitute
subjectivity by objectivity. The emphasis
on recording reasons is that if the decision
reveals the "inscrutable face of the sphinx",
it can, by its silence, render it virtually
impossible for the Courts to perform their
appellate function or exercise the power of
judicial review in adjudging the validity of
the decision. Right to reason is an
indispensable part of a sound judicial
system; reasons at least sufficient to
indicate an application of mind to the
matter before Court. Another rationale is
that the affected party can know why the
decision has gone against him. One of the
salutary requirements of natural justice is
spelling out reasons for the order made; in
other
words,
a
speaking
out.
The
"inscrutable face of a sphinx" is ordinarily
incongruous with a judicial or quasijudicial performance.

10. The parties have sought waiver of
a period of six months for the second
motion on the ground that they have been
living separately for last more than one
year and there is no possibility of their
reunion. Any further delay will affect
chances of their resettlement in life.

11. Learned counsel for the appellant
has submitted that there is no chance of
reconciliation between the parties due to
their
temperamental
and
ideological
108 INDIAN LAW REPORTS ALLAHABAD SERIES
differences. The marriage has not been
consummated and just after four days of
marriages both are living separately.

12. Learned counsel for the appellant
further submitted that the object of the
cooling off the period was to safeguard
against a hurried decision if there was,
otherwise, possibility of differences being
reconciled.
The
object
was
not
to
perpetuate a purposeless marriage or to
prolong the agony of the parties when there
is no chance of reconciliation.

13. Learned counsel for the second
respondent
has
also
supported
the
arguments so raised by learned counsel for
the appellant. She has also submitted that
there is no chances of reconciliation and for
the interest of the parties this Court may
rescue and reprieve the parties.

14. On the matter being taken up on
29.1.2021, on the request of learned counsel
for the appellant the matter was adjourned
and posted for hearing on 2.2.2021. Ms.
Utkarshni Singh, learned counsel has entered
appearance on behalf of second respondent.
The appellant and the second respondent are
also present in the Court. Both the parties
made a categorical statement before the Court
that there is no chance of reconciliation. It has
also been informed that the appellant has
completed her C.A. Intermediate. The second
respondent is working in IT company. It is
submitted that both are educated and
consciously they have taken decision to move
on independently. Parties have also made
statement that there is no chance of
reconciliation and their families are also of
the same opinion.

15. We have heard rival submissions,
perused the record and also considered the
statement so given by the parties.

16. The Hindu Marriage Act, 1955 is
a special Act dealing with the provisions
relating
to
marriages,
restitution
of
conjugal rights and judicial separation as
also nullity of marriage and divorce. (vide:
Jagraj Singh v. Birpal Kaur2) Under
section 13 of the Act marriage can be
dissolved by decree of divorce on the
various grounds enumerated therein and the
same has been further qualified by Section
14 that no petition for divorce to be
presented within one year of the marriage.
However, an exception has been carved out
by inserting a proviso in Section 14, with
an intention to mollify the effect of the one
year's limit in very exceptional cases as the
proviso to Section 14 of the Act engrafts a
very important qualification on the general
rule laid down in the section that no
petition for dissolution of marriage by a
decree of divorce can be entertained by the
court before the statutory period expires. It
enables the court in the exercise of its
discretion to grant leave to present such
petition before the expiry of the one year's
limit in a case of 'exceptional hardship' or
'exceptional depravity' to the appellant.

17. In catena of cases relating to
matrimonial dispute, Hon'ble the Apex
court
has
observed
that
matrimonial
disputes have to be decided by Courts in a
pragmatic manner keeping in view the
ground realities. The fact which pricked the
conscience of the Court is that even though
the
marriage
was
solemnized
on
11.12.2019, the appellant stayed in her
matrimonial house only for four days and
from 16.12.2019 started living in her
parental house. The marriage has not been
consummated and they are voluntarily
inclined to withdraw from the relationship
due to temperamental and ideological
differences, which is stated to be not
compromised, and they could not enjoy
6 All. Priyanka Chauhan Vs. Principal Judge, Family Court, G.B. Nagar & Anr.
109
their happy married life. In such situation,
continuance of litigation will cause mental
and
physical
harassment
to
them
unnecessarily, when both of them are not
inclined to continue with the relationship at
all. We have been principally impressed by
the consideration that once the marriage
has broken down beyond repair, it would
be unrealistic for the law not to take notice
of that fact, and it would be harmful to
society and injurious to the interests of the
parties. Where there has been a long period
of continuous separation, it may fairly be
surmised that the matrimonial bond is
beyond repair. The marriage becomes a
fiction, though supported by a legal tie. By
refusing to sever that tie the law in such
cases does not serve the sanctity of
marriage; on the contrary, it shows scant
regard for the feelings and emotions of the
parties. Under the traditional Hindu Law,
as it stood prior to the statutory law on the
point, marriage is a sacrament and cannot
be dissolved by consent. The Act enabled
the court to dissolve marriage on statutory
grounds. By way of amendment in the year
1976, the concept of divorce by mutual
consent was introduced. However, Section
13-B(2) contains a bar to divorce being
granted before six months of time elapsing
after filing of the divorce petition by
mutual consent. The said period was laid
down to enable the parties to have a rethink
so that the court grants divorce by mutual
consent only if there is no chance for
reconciliation. The object of the 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 amendment was inspired by
the thought that forcible perpetuation of
status of matrimony between unwilling
partners did not serve any purpose. The
object of the cooling off the period was to
safeguard against a hurried decision if there
was, otherwise, possibility of differences
being reconciled. The object was not to
perpetuate a purposeless marriage or to
prolong the agony of the parties when there
was no chance of reconciliation.

18. So far as determining the
question, whether, the said period is
mandatory or directory, the said aspect has
been considered by Hon'ble the Apex Court
in Amardeep Singh v. Harveen Kaur3.
The relevant portion of the said judgment is
quoted as under:-

"6. This Court noted that power under
Article 142 had been exercised in cases
where the Court found the marriage to be
totally
unworkable,
emotionally
dead,
beyond
salvage
and
broken
down
irretrievably.
This
power
was
also
exercised to put quietus to all litigations
and to save the parties from further
agony4. This view was reiterated in
Poonam versus Sumit Tanwar5

14. The learned amicus submitted that
waiting period enshrined under Section 13B(2) of the Act is directory and can be
waived by the court where proceedings are
pending, in exceptional situations. This
view is supported by judgments of the
Andhra Pradesh High
Court
in K.
Omprakash vs. K. Nalini6, Karnataka High
Court in Roopa Reddy vs. Prabhakar
Reddy7, Delhi High Court in Dhanjit
Vadra vs. Smt. Beena Vadra8, and Madhya
Pradesh High Court in Dinesh Kumar
Shukla vs. Smt. Neeta9. Contrary view has
been taken by Kerala High Court in M.
Krishna
Preetha
vs.
Dr.
Jayan
Moorkkanatt10. It was submitted that
Section 13-B(1) relates to jurisdiction of
the Court and the petition is maintainable
only if the parties are living separately for
a period of one year or more and if they
110 INDIAN LAW REPORTS ALLAHABAD SERIES
have not been able to live together and
have agreed that the marriage be dissolved.
Section
13-B(2)
is
procedural.
He
submitted that the discretion to waive the
period
is
a
guided
discretion
by
consideration of interest of justice where
there is no chance of reconciliation and
parties were already separated for a longer
period or contesting proceedings for a
period longer than the period mentioned in
Section 13-B(2). Thus, the Court should
consider the questions:

(i) How long parties have been
married?

(ii) How long litigation is pending?

(iii) How long they have been staying
apart?

(iv) Are there any other proceedings
between the parties?

(v)
Have
the
parties
attended
mediation/ conciliation?

(vi) Have the parties arrived at
genuine settlement which takes care of
alimony, custody of child or any other
pending issues between the parties?

15. The Court must be satisfied that
the parties were living separately for more
than the statutory period and all efforts at
mediation and reconciliation have been
tried and have failed and there is no
chance of reconciliation
and further
waiting period will only prolong their
agony.

16. We have given due consideration
to the issue involved. Under the traditional
Hindu Law, as it stood prior to the
statutory law on the point, marriage is a
sacrament and cannot be dissolved by
consent. The Act enabled the court to
dissolve marriage on statutory grounds. By
way of amendment in the year 1976, the
concept of divorce by mutual consent was
introduced. However, Section 13-B(2)
contains a bar to divorce being granted
before six months of time elapsing after
filing of the divorce petition by mutual
consent. The said period was laid down to
enable the parties to have a rethink so that
the court grants divorce by mutual consent
only
if
there
is
no
chance
for
reconciliation.

17. The object of the 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 amendment was inspired by the
thought that forcible perpetuation of status
of matrimony between unwilling partners
did not serve any purpose. The object of the
cooling- off the period was to safeguard
against a hurried decision if there was
otherwise possibility of differences being
reconciled.
The
object
was
not
to
perpetuate a purposeless marriage or to
prolong the agony of the parties when there
was no chance of reconciliation. Though
every effort has to be made to save a
marriage, if there are no chances of
reunion and there are chances of fresh
rehabilitation, the Court should not be
powerless in enabling the parties to have a
better option.

18. In determining the question
whether
provision
is
mandatory
or
directory, language alone is not always
decisive. The Court has to have the regard
to the context, the subject matter and the
object of the provision. This principle, as
formulated
in
Justice
G.P.
Singh's
"Principles of Statutory Interpretation"
(9th Edn., 2004), has been cited with
approval in Kailash versus Nanhku11. as
follows:(SCC pp. 496-97, para 34)

'34.....The study of numerous cases on
this topic does not lead to formulation of
any universal rule except this that language
alone most often is not decisive, and regard
must be had to the context, subject-matter
and object of the statutory provision in
6 All. Priyanka Chauhan Vs. Principal Judge, Family Court, G.B. Nagar & Anr.
111
question, in determining whether the same
is mandatory or directory. In an oft-quoted
passage
Lord
Campbell
said:
''No
universal rule can be laid down as to
whether mandatory enactments shall be
considered directory only or obligatory
with
an
implied
nullification
for
disobedience. It is the duty of courts of
justice to try to get at the real intention of
the legislature by carefully attending to the
whole
scope
of
the
statute
to
be
considered.' (p.338)

''For ascertaining the real intention of
the legislature', points out Subbarao, J.
''the court may consider inter alia, the
nature and design of the statute, and the
consequences which would follow from
construing it the one way or the other; the
impact of other provisions whereby the
necessity of complying with the provisions
in question is avoided; the circumstances,
namely, that the statute provides for a
contingency of the non-compliance with the
provisions;
the
fact
that
the
noncompliance with the provisions is or is not
visited by some penalty; the serious or the
trivial consequences, that flow therefrom;
and above all, whether the object of the
legislation will be defeated or furthered'. If
object of the enactment will be defeated by
holding the same directory, it will be
construed as mandatory, whereas if by
holding it mandatory serious general
inconvenience will be created to innocent
persons without very much furthering the
object of enactment, the same will be
construed as directory."

19. 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 13-B(2), it can do so
after considering the following:

(i) the statutory period of six months
specified in Section 13-B(2), in addition to
the statutory period of one year under
Section 13-B(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 32-A 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.

The waiver application can be filed one
week after the first motion giving reasons for
the prayer for waiver. If the above conditions
are satisfied, the waiver of the waiting period
for the second motion will be in the discretion
of the court concerned."

19. In the aforesaid case, Hon'ble the
Apex Court has considered Section 13-B(2)
of the Act, divorce by mutual consent and
cooling off period of six months and held
that the said period is directory with certain
conditions under which the court concerned
may waive off the said period. The waiting
period enshrined under Section 13-B(2) of
the Act is directory and can be waived by
the court, where, proceedings are pending,
in exceptional situation. Hon'ble the Apex
Court in Amardeep Singh (Supra) has
considered the discretion to waive the
period, where, there is no chance of
reconciliation and parties were already
separated. In such situation it is paramount
responsibility to consider the basic issues,
which has been stipulated in para 14 of the
said judgment as under:-

"(i) How long parties have been
married?
112 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) How long litigation is pending?

(iii) How long they have been staying
apart?

(iv) Are there any other proceedings
between the parties?

(v)
Have
the
parties
attended
mediation/conciliation?

(vi) Have the parties arrived at
genuine settlement which takes care of
alimony, custody of child or any other
pending issues between the parties?"

20. In R. Srinivas Kumar v.
Shametha12 Hon'ble the Apex Court
considering the facts and circumstances of
the case on being satisfied that marriage
has irretrievably broken down has held that
such marital relationship can be dissolved
which is already dead, with a view to do
complete justice between the parties. For
ready reference, the relevant paragraphs 3.1
and 5.1 of the said judgment are quoted as
under:-

"3.1. In support of his alternative
submission to dissolve the marriage on the
ground of irretrievable breakdown of
marriage, learned Senior Advocate has
heavily relied upon the following decisions
of this Court, Durga Prasanna Tripathy v.
Arundathi Tripathy (2005) 7 SCC 353;
Naveen Kohli v. Neelu Kohli (2006) 4 SCC
558; Sanghamitra Ghosh v. Kajal Kumar
Ghosh (2007) 2 SCC 220; Samar Ghosh v.
Jaya Ghosh (2007) 4 SCC 511; K. Srinivas
Rao v. D.A. Deepa (2013) 5 SCC 226; and
Sukhendu Das v. Rita Mukherjee (2017) 9
SCC 632.....

5.1. At the outset, it is required to be
noted and does not seem to be in dispute
that since last 22 years both the appellathusband and the respondent-wife are
residing separately. It also appears that all
efforts to continue the marriage have failed
and there is no possibility of re-union
because of the strained relations between
the parties. Thus, it appears that marriage
between the appellant-husband and the
respondent-wife has irretrievably broken
down. In the case of Hitesh Bhatnagar
(supra), it is noted by this Court that
Courts can dissolve a marriage as
irretrievably broken down only when it is
impossible to save the marriage and all
efforts are made in that regard and when
the Court is convinced beyond any doubt
that there is actually no chance of the
marriage surviving and it is broken beyond
repair......."

21. In Archi Agarwal v. Principal
Judge,
Family
Court,
Lucknow13
Hon'ble the Apex Court while considering
the exemption of statutory period has held
that such application can be allowed in
cases of "exceptional hardship" or of
"exceptional depravity" as continuance of
litigation would cause mental and physical
harassment to both the parties.

22. Subject to the provisions of the
Act a petition for dissolution of marriage
by a decree of divorce may be presented to
the Principal Judge, Family Court by both
the parties together 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
been mutually agreed that the marriage
should be dissolved. For ready reference
Section 13B of the Act is quoted as under:-

"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 solemnised before or after the
commencement of the Marriage Laws
6 All. Priyanka Chauhan Vs. Principal Judge, Family Court, G.B. Nagar & Anr.
113
(Amendment) Act, 1976 (68 of 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 solemnised 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."

23. Section 13-B itself provides for a
cooling period of six months on the first
motion being moved, in the event the
parties changed their minds during the said
period. Accordingly, after the initial motion
and the presentation of the petition for
mutual divorce, the parties are required to
wait for a period of six months before the
second motion can be moved, and at that
point of time, if the parties have made up
their minds that they would be unable to
live together, the Court, after making such
inquiry as it may consider fit, grant a
decree of divorce declaring the marriage to
be dissolved with effect from the date of
the decree.

24. It is also urged that the other
conditions contained in Section 13-B(1) of
the Act has also been satisfied as the parties
have been living separately for more than a
year and had mutually agreed that the
marriage should be dissolved. It was urged
that except for the formality of not having
made an application under Section 13-B,
the other criteria has been duly fulfilled and
having regard to the language of Section
13-B, a decree of dissolution of the
marriage by way of mutual divorce should
not be denied to the parties, since one
month out of waiting period of six months
contemplated under Section 13B had
already been completed.

25. Hon'ble the Apex Court in Anil
Kumar Jain v. Maya Jain14 had invoked
its power under Art. 142 of the Constitution
of India in the best interest of the parties as
it had been urged that technicality should
be tempered by pragmatism, if substantive
justice was to be done to the parties.

26. It is undoubetedly true that the
Legislature had in its wisdom stipulated a
cooling period of six months from the date
of filing of a petition for mutual divorce till
such divorce is actually granted, with the
intention that it would save the institution
of marriage. In such situation the intention
of the Legislature cannot be faulted with,
but there may be occasions when in order
to do complete justice to the parties it
becomes necessary for this Court to invoke
its discretion in an irreconcilable situation.

27. Hon'ble the Apex Court in
Devinder Singh Narula v. Meenakshi
Nangia15 has considered the cooling off
period of six months prior to filing of
second motion under Section 13-B in the
backdrop that the parties living separately
for more than one year, no formal ties of
marriage between the parties and the
marriage is subsisting by a tenuous thread
on account of the statutory cooling off
period, out of which four months have
already expired. The Supreme Court
observed that there is no reason to continue
114 INDIAN LAW REPORTS ALLAHABAD SERIES
the agony of the parties for another two
months, when it is not possible for the
parties to live together and to discharge
their marital obligations towards each other
for more than one year. The relevant
portion of the said judgment is quoted as
under:-

"10. As will appear in the averments
made in this appeal, the appellant filed a
petition under Section 12 of the Hindu
Marriage Act on 1.6.2011 on the ground
that the marriage contracted on 26.3.2011,
was a nullity; that the parties had been
living separately since their marriage and
have not cohabitated with each other since
1.6.2011 and in future also they could
never live together under one roof.
According to the parties, they are residing
separately from each other for the last one
year and the respondent was presently
working overseas in Canada. It is with such
object in mind that during the pendency of
the proceedings under Section 12 of the Act
the parties agreed to mediation and during
mediation the parties agreed to dissolve
their marriage by filing a petition under
Section 13-B of the above Act for grant of
divorce by mutual consent.

11. In the proceedings before the
Mediator, the parties agreed to move
appropriate petitions under Section 13B(1) and 13-B(2) of the Act. A report was
submitted by the Mediator of the Mediation
Centre of the Tis Hazari Courts to the
Court in the pending HMA No.239 of 2011.
It is pursuant to such agreement during the
mediation proceedings that an application
was filed by the parties in the aforesaid
pending HMA on 15.12.2011 indicating
that they had settled the matter through the
mediation centre and that they would be
filing a petition for divorce by mutual
consent on or before 15.4.2012. On the
strength of the said petition, the HMA
proceedings
were
disposed
of
as
withdrawn. Subsequently, on 13.4.2012 the
parties filed a joint petition under Section
13-B of the Act on which the order came to
be passed by the learned Additional
District Judge -01, West Delhi, fixing the
date for the second motion on 15.10.2012.

12. It is quite clear from the materials
on record that although the marriage
between the parties was solemnized on
26.3.2011, within 3 months of the marriage
the petitioner filed a petition under Section
12 of the Hindu Marriage Act, 1955, for a
decree
of
nullity
of
the
marriage.
Thereafter, they have not been able to live
together and lived separately for more than
1 year. In effect, there appears to be no
marital ties between the parties at all. It is
only the provisions of Section 13-B(2)of the
aforesaid Act which are keeping the formal
ties of marriage between the parties
subsisting in name only. At least the
condition indicated in Section 13-B for
grant of a decree of dissolution of marriage
by the mutual consent is present in the
instant case. It is only on account of the
statutory cooling off period of six months
that the parties have to wait for a decree of
dissolution of marriage to be passed.

13. In the above circumstances, in our
view, this is one of those cases where we
may invoke and exercise the powers vested
in the Supreme Court under Article 142 of
the Constitution. The marriage is subsisting
by a tenuous thread on account of the
statutory cooling off period, out of which
four months have already expired. When it
has not been possible for the parties to live
together and to discharge their marital
obligations towards each other for more
than one year, we see no reason to continue
the agony of the parties for another two
months.

14. We, accordingly, allow the appeal
and also convert the pending proceedings
6 All. Priyanka Chauhan Vs. Principal Judge, Family Court, G.B. Nagar & Anr.
115
under Section 12 of the Hindu Marriage
Act, 1955, before the Additional District
Judge-I, West Delhi, into one underSection
13-B of the aforesaid Act and by invoking
our powers under Article 142 of the
Constitution, we grant a decree of mutual
divorce to the parties and direct that the
marriage between the parties shall stand
dissolved
by
mutual
consent.
The
proceedings before the Additional District
Judge-I, West Delhi, being HMA No.204 of
2012, is withdrawn to this Court on consent
of the parties and disposed of by this
order......."

28. In K. Thiruvengadam v. Nil16 it
was held that though it is obligatory for
courts to make last minute efforts to save
marriage, where there is no possibility of reunion and when process of divorce by mutual
consent has been adopted it is open to court
to waive 6 months' period. Section 13-B is
only directory and not mandatory and if held
to be mandatory it would frustrate very
liberalised concept of divorce by mutual
consent.

29. In Miten v. Union of India17 it
was observed that three ingredients had to be
satisfied before the court to a relief under
Section 13-B to the parties: (i) the parties had
been living separately for a period of more
than a year, (ii) they had not been able to live
together and (iii) that they have mutually
agreed to dissolve the marriage. Once these
three statutory conditions are satisfied then it
gives jurisdiction to the court to entertain a
petition for divorce by mutual consent.
Purpose of introducing mutuality was not to
dissolve the marriage between the newly wed
at the drop of the hat without any reason/
jurisdiction.

30. The court on the very first date,
must satisfy itself that consent is not
obtained for divorce by force, fraud or
undue influence and must reveal it in order
of court. (vide: Sushama v. Pramod18).

31. In the present matter on the
second day of hearing both the parties were
present and separately they made a
categorical statement that within four days
of their solemnisation of marriage they
departed and even the marriage has not
been consummated. Both are literate and
decided with full conscious mind that they
have to be separated. We have also tried to
get an impression whether the said
statement is with free will or not. They had
no hesitation in responding that there is no
force, fraud or undue influence while
reaching to such decision.

32. Considering the facts and
circumstances of the case, we are of the
view that 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. In the present
matter
the
wife
remained
in
her
matrimonial house only for four days and
for more than one year they are living
separately. The marriage has never been
consummated. They also make statement
before the Court that they do not want to
live together and there is no chance of
reconciliation and the waiting period will
only prolong their agony. They have made
statement that they have better future
prospects if divorce is allowed.

33. In view of the above and keeping in
mind the legal position, we are of the
considered opinion that learned Incharge
Principal Judge, Family Court rejected the
application 17/C without considering the
facts of the case as well as law laid down by
116 INDIAN LAW REPORTS ALLAHABAD SERIES
the Apex Court, therefore, the order
impugned is set aside. The application 17/C
is allowed. The present first appeal allowed
accordingly. Learned Principal Judge, Family
Court is directed to decide the Original Suit
No. 592 of 2020 expeditiously or preferably
within
7
days
after
producing
the
computerized copy of this judgment.

34. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad,
self
attested
by
the
appellant/respondent along with a self
attested identity proof of the said person
(preferably Aadhar Card) mentioning the
mobile number to which the said Aadhar
Card is linked.

35. The concerned Court /Authority
/Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad and
shall make a declaration of such verification
in writing.
----------
(2021)06ILR A116
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2017

BEFORE

THE HON'BLE DILIP GUPTA, J.
THE HON'BLE AMAR SINGH CHAUHAN, J.

First Appeal (D) No. 200 of 2017

Upendra Singh @ Omji ...Appellant
Versus
Abbyan Singh @ Kanhaiya & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Mridul Kumar

Counsel for the Respondents:
--

A. Civil Law - Hindu Adoptions and
Maintenance Act, 1956 - Section 20 -
Father's
liability
to
maintain
son
-
Expenses
of
treatment,
claimed
-
Maintenance - Scope and definition - Son
is suffering from heart disease - Held,
'Maintenance' includes provision for food,
clothing, residence, education of the
children
and
medical
attendance
or
treatment - Appellant-father is able to
provide
medical
expenses
and
maintenance - He cannot escape liability
by raising plea that son is living with his
mother. (Para 7 and 8)

First Appeal dismissed. (E-1)
Cases relied on :-
1. State of Haryana Vs Smt. Santra, AIR 2000
SC 1888
(Delivered by Hon'ble Amar Singh Chauhan, J.)

1.