# Smt. Anamika Srivastava v. Anoop Srivastava

- **Citation:** (2022) 6 ILRA 847
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-27
- **Case number:** First Appeal No. 30 of 2022
- **Bench:** Rakesh Srivastava, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anamika-srivastava-v-anoop-srivastava-48868
- **Pages:** 11

## Headnote

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13-B - Divorce by mutual consent
- Waiving of cooling period of six months
-
Compliance
of
Section
13-B(2),
mandatory or directory in nature - Held,
the period mentioned under Section 13B(2) of the Act is not mandatory but
directory.
It
is
open
to
the
Court
concerned to exercise its discretion in the
facts and circumstances of each case -
However, the discretion to waive statutory
period of six months is a guided discretion
for consideration of interest of justice
where there is no chance of reconciliation
and the parties were already separated for
a longer period or contesting proceedings
for a period longer than the period
mentioned in Section 13-B(2) of the Act -
Amardeep Singh's case and Amit Kumar's
case relied upon. (Para 21 and 22)
B.
Matrimonial
Law
-
Divorce
-
Irretrievable Break down - The parties
lived together only for three months -
They lived apart for more than eleven
years - The parties have appeared before
the Mediation and Conciliation Centre and
have settled their dispute amicably. The
parties are unwilling to live together as
husband and wife - Effect - Held,
considering that the parties had already
engaged
in
mediation
before
the
Mediation Centre, and had failed to
reconcile, no purpose would be served by
subjecting the parties to the same process
again, especially when they have been
living apart for several years, and the
marriage has irretrievably broken down.
(Para 29 and 30)
Appeal allowed. (E-1)
List of Cases cited :-

## Text

6 All. Smt. Anamika Srivastava Vs. Anoop Srivastava
847
which was done by the appellant with
Deepak his elder son then he would
definitely not have allowed the appellant to
play with the child of the first informant
who was later on murdered. On these
grounds we, therefore, conclude that the
appeal deserves to be allowed and the
appellant deserves to be acquitted.

43. The appeal is, therefore, allowed
and the judgement and order dated 20.3.2008
passed by the Additional Sessions Judge,
Court No. 6, Muzaffarnagar, in Session Trial
No. 854 of 2007 arising out of Case Crime
No. 7 of 2007, under Section 302 and 201
IPC, Thana - Bhaunrakala, District -
Muzaffarnagar, is quashed and is set aside.

44. Since the appellant is reported to be
in jail, he be set free forthwith, if he is not
required in any other case.

45. We appreciate the hard work which
has been put in by the Amicus Curiae and
quantify the fee to be Rs. 35,000/- which may
be paid to him.
----------
(2022)06ILR A847
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.05.2022

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

First Appeal No. 30 of 2022

Smt. Anamika Srivastava ...Appellant
Versus
Anoop Srivastava ...Respondent

Counsel for the Appellant:
Sri Ramesh Kumar Dwivedi

Counsel for the Respondent:
Sri Akhilesh Kumar Pandey, Sri Akhilesh
Kumar Pandey

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13-B - Divorce by mutual consent
- Waiving of cooling period of six months
-
Compliance
of
Section
13-B(2),
mandatory or directory in nature - Held,
the period mentioned under Section 13B(2) of the Act is not mandatory but
directory.
It
is
open
to
the
Court
concerned to exercise its discretion in the
facts and circumstances of each case -
However, the discretion to waive statutory
period of six months is a guided discretion
for consideration of interest of justice
where there is no chance of reconciliation
and the parties were already separated for
a longer period or contesting proceedings
for a period longer than the period
mentioned in Section 13-B(2) of the Act -
Amardeep Singh's case and Amit Kumar's
case relied upon. (Para 21 and 22)
B.
Matrimonial
Law
-
Divorce
-
Irretrievable Break down - The parties
lived together only for three months -
They lived apart for more than eleven
years - The parties have appeared before
the Mediation and Conciliation Centre and
have settled their dispute amicably. The
parties are unwilling to live together as
husband and wife - Effect - Held,
considering that the parties had already
engaged
in
mediation
before
the
Mediation Centre, and had failed to
reconcile, no purpose would be served by
subjecting the parties to the same process
again, especially when they have been
living apart for several years, and the
marriage has irretrievably broken down.
(Para 29 and 30)
Appeal allowed. (E-1)
List of Cases cited :-
1. Amardeep Singh Vs Harveen Kaur; (2017) 8
SCC 746
2. Neeti Malviya Vs Rakesh Malviya; (2010) 6
SCC 413
848 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Amit Kumar Vs Suman Beniwal; 2021 SCC
OnLine SC 1270
4. Naveen Kohli Vs Neelu Kohli; (2006) 4 SCC
558
(Delivered by Hon'ble Rakesh Srivastava, J.
&
Hon'ble Ajai Kumar Srivastava-I, J.)

1. This first appeal under Section 19 of
the Family Courts Act, 1984 has been filed
challenging the orders dated 02.02.2022 and
07.03.2022 passed by the Family Court
(Principal Judge, Family Court, Barabanki)
rejecting the prayer made by the Appellant and
the Respondent to waive the minimum period
of six months stipulated under Section 13-B(2)
of the Hindu Marriage Act, 1955 (for short 'the
Act') for a motion for passing a decree of
divorce on the basis of mutual consent.

2. Anamika Srivastava, the Appellant,
was married to Anoop Srivastava, the
Respondent, according to Hindu rites and
rituals at Barabanki on 17.06.2010. Soon after
the marriage, differences arose between them
to such an extent that the Appellant left her
matrimonial home on 24.09.2010 and since
then she has been living with her parents. On
01.05.2013,
the
Appellant
moved
an
application under Section 125 CrPC against
the Respondent before the Family Court. The
said case was registered as Criminal Misc.
Case No. 258 of 2013 (Anamika Srivastava
vs. Anoop Srivastava). On 03.10.2018, the
Family Court allowed the application moved
by the Appellant and directed the Respondent
to pay a sum of Rs. 5000/- (Rupees five
thousand only) per month to the Appellant
towards maintenance with effect from the date
of judgment. The judgment and order dated
03.10.2018 was assailed by the Respondent
before this Court in Criminal Revision No.10
of 2019.

3. This Court vide its order dated
08.09.2021, passed in the said criminal
revision, referred the matter to the
Mediation and Conciliation Centre of this
Court to explore the possibility of an
amicable settlement between the parties.
The
mediation
was
successful.
The
Appellant and the Respondent agreed to
dissolve their marriage. It was agreed that
the Respondent shall pay a sum of Rs.
4,25,000/- (Rupees four lacs twenty five
thousand only) to the Appellant towards
full and final settlement of all disputes and
the litigation between them whether civil or
criminal will terminate. In terms of the
settlement arrived at between the parties,
the Respondent paid a sum of Rs. 3,00,000
(Rupees three lacs only) to the Appellant
and on 13.01.2022 the parties jointly filed
an application under section 13-B of the
Act before the Family Court for dissolution
of their marriage. The said case was
registered as Regular Suit No.56 of 2022,
Smt.
Anamika
Srivastava
v.
Anoop
Srivastava. A copy of the settlement
agreement dated 30.03.2022 signed by the
Appellant, the Respondent, their counsel
and the mediator has been brought on
record as annexure no. SA-2 to the
supplementary affidavit dated 12.04.2022.

4. On 13.01.2022 the Family Court
passed an order, whereby the petition for
divorce moved by the Appellant was
ordered to be registered. 02.07.2022 was
the date fixed for second motion and in the
meantime the parties were directed to
appear before the mediation centre on
14.02.2022. The relevant portion of the
order dated 13.01.2022 is quoted below:

Þi{kdkjksa }kjk ,d lkFk jguk laHko u
gksus dk dFku fd;k x;k rFkk vkilh lgefr ls
rykd dh ;kpuk dh xbZA i{kdkjksa dks iquZfopkj
6 All. Smt. Anamika Srivastava Vs. Anoop Srivastava
849
gsrq N% ekg dk le; nsuk fof/k vuqlkj vko';d
gSA

vkns'k

ntZ jftLVj gksA i=koyh okLrs
iquZfopkj ,oa f}rh; ekspu gsrq fnukad 02-07-2022
dks is'k gksA blls iwoZ fnukad 14-02-2022 dks
mHk; i{k esfM,'ku esa mifLFkr gksAß

5. On 02.02.2022 the Appellant and
the
Respondent
jointly
moved
an
application before the Family Court under
Section 13-B(2) of the Act, seeking waiver
of six months waiting period to make a
motion for the court to pass decree of
divorce on the ground that the mediation
between the parties had already taken place
before the mediation centre of this Court
wherein the parties had agreed to dissolve
their marriage by mutual consent and, as
such, there was no occasion for the second
mediation.
The
said
application
was
rejected by the Family Court. The relevant
portion of the order dated 02.02.2022 reads
as under:-

"okn is'k gqvkA x&9 izkFkZuk i= izkFkhZx.k
dh vksj ls bl vk'k; dk izLrqr fd;k x;k gS fd
izLrqr ekeys esa ekuuh; mPp U;k;ky; y[kuÅ [k.M
ihB y[kuÅ esa le>kSrk gksus ds mijkUr izLrqr okn
;ksftr fd;k x;k gSA blfy, izLrqr ekeys esa
ehfM,'ku lsUVj gsrq fu;r frfFk fn0 14-02-2022 o
lquokbZ gsrq 02-07-2022 fujLr djrs gq, 'kh?kz lquokbZ
gsrq vU; frfFk fu;r dh tk,A

lquk rFkk i=koyh dk voyksdu fd;kA

izLrqr ekeys esa fof/k }kjk fofgr mica/k ds
vuqlkj gh dk;Zokgh lqfuf'pr djus gsrq mHk; i{k dks
ehfM,'ku lsUVj gsrq fu;r frfFk fn0 14-02-2022 dh
frfFk o f}rh; eks'ku gsrq frfFk 02-07-2022 izLrqr ekeys
esa fu;r dh x;h gSA izLrqr ekeys esa dksbZ vU;Fkk
vkiokfnd rF; nf'kZr ugha dh x;h gSA ftlls fof/k
}kjk fofgr izfdz;k ls brj dk;Zokgh djrs gq, iwoZ fu;r
frfFk dks fujLr dj vU; dksbZ frfFk fu;r dh tk,A
vr% ekeys ds rF; ,oa ifjfLFkfr;ksa dks ns[krs gq, izkFkZuk
i= esa ;kfpr 'kh?kz lquokbZ dh ;kpuk Lohdkj fd, tkus
dk vkSfpR; iw.kZ vk/kkj ugha gSA izkFkZuk i= fujLr fd,
tkus ;ksX; gSA

rnuqlkj izkFkZuk i= x&9 fujLr fd;k
tkrk gSAß

(emphasis supplied)

6. On 07.03.2022 the parties again
moved an application for waiving the
statutory period of six months for second
motion. It was inter alia said in the said
application that parties had been living
separately for more than ten years; that before
the Mediation Centre of this Court the parties
freely on their own accord, without any
coercion or pressure, have arrived at a joint
settlement. In the circumstances, six month
waiting period be waived and a decree of
divorce be passed forthwith. By an order
dated 07.03.2022 the said application has
been rejected by the Family Court on the
ground that in terms of the order passed in the
said case, the parties had not appeared before
the mediation centre and, as such, there was
no good ground to waive the statutory period
of six months. The Order dated 07.03.2022 is
extracted below:-

Þokn is'k gqvkA izkFkhZx.k mHk; i{k dh
vksj ls izkFkZuk i= x&12 bl vk'k; dk izLrqr fd;k
x;k gS fd mHk; i{k ds e/; fn0 17-06-2010 dks fgUnw
jhfr&fjokt ds vuqlkj fookg gqvk FkkA nksuksa ds e/;
dksbZ larku ugha gSA fookg ds 3 ekg ckn gh nksuksa i{k
vyx gks x;s vkSj rc ls nksuksa i{k vyx&vyx jg
jgs gSaA Hkj.k&iks"k.k ds okn esa mHk; i{k ds e/;
fookn foPNsn ij lgefr gqbZ ftlds vuqdze esa izLrqr
okn fookg foPNsn gsrq vUrxZr /kkjk 131⁄4ch1⁄2 fgUnw
fookg vf/kfu;e izLRkqr fd;k x;k gS vkSj mHk; i{k ds
e/; vkilh lqyg le>kSrs ls Hkj.k&iks"k.k ds laca/k esa
Hkh /kujkf'k eq0 4]25000@& r; gks x;h gS ftlesa ls
eq0 300000@& izkfFkZuh@okfnuh la[;k&1 dks izkIRk gks
pqdh gS vkSj lqyg le>kSrs ds vuqdze esa eq0
1]25]000@& oknh la[;k&2 }kjk okfnuh la[;k&1 dks
850 INDIAN LAW REPORTS ALLAHABAD SERIES
fn;k tk;sxkA U;k;ky; }kjk fu/kkZfjr izFke eks'ku dh
frfFk fn0 14-02-2022 dks mHk; i{k esa le>kSrk ugha
gks ldkA mHk; i{k ds e/; fookg cuk;s j[kus dh vc
dksbZ laHkkouk ugha gSA N% ekg dh vof/k vkKkid ugha
cfYd funsZ'kkRed gS blfy, N% ekg dh vof/k dks
lekIr dj oknhx.k ds okn dks mHk; i{k dh lgefr
ds vk/kkj ij rRdky vkKkIr fd;k tk, vkSj mHk;
i{k ds e/; xfBr fookg dks foPNsfnr fd;k tk,A

lquk rFkk i=koyh dk voyksdu fd;kA

i=koyh ds voyksdu ls Li"V gksrk gS fd
iwoZ esa mHk; i{k dh vksj ls blh vk'k; dk izkFkZuk i=
fn0 02-02-2022 dks izLrqr fd;k x;k Fkk ftls
xq.k&nks"k ds vk/kkj ij izkFkZUkk i= iks"k.kh; u gksus ds
dkj.k fujLr fd;k x;k FkkA

izLrqr izdj.k esa vUrxZr /kkjk 131⁄4ch1⁄2 fgUnw
fookg vf/kfu;e mHk; i{k ds e/; gq, fookg dks
fo?kfVr djus gsrq lafLFkr okn esa izFke eks'ku gsrq
e/;LFkrk dsUnz ij i{kdkjksa dks mifLFkr gksus gsrq fn0
14-02-2022 dh frfFk fu/kkZfjr dh x;h vkSj f}rh;
eks'ku gsrq lquokbZ dh frfFk fn0 02-07-2022 fu;r dh
x;hA fdURkq izkFkhZx.k@oknhx.k izkFkZuk i= x&12
lefFkZr 'kiFk i= ds vuqlkj mHk; i{k fn0 14-022022 dks lqyg le>kSrk gsrq e/;LFkrk dsUnz ij
mifLFkr ugha vk;sA ;|fi dksfoM&19 egkekjh ds
izHkko o izlkj ds dkj.k U;kf;d dk;Z o e/;LFkrk
dk;Z mDr vof/k esa lE;d :i ls lEikfnr ugha gks
ldk] fdUrq orZeku esa ekuuh; mPp U;k;ky; ds
fn'kkfunsZ'k ds vuqdze esa U;kf;d dk;Z o e/;LFkrk
dk;Z iw.kZ :i ls lapkfyr fd;k tk jgk gS fdURkq
mlds ckn Hkh mHk; i{k vURkxZr /kkjk 131⁄4ch1⁄2 fgUnw
fookg vf/kfu;e o ifjokj U;k;ky; vf/kfu;e dh
lqlaxr mica/kksa ds v/khu lqyg le>kSrk gsrq e/;LFkrk
dsUnz igq¡p ugha lds u gh lqyg&le>kSrk gsrq
iz;kljr gSa u gh ckn esa tc e/;LFkrk dk;Z lqpk:
:i ls lapkfyr gksus yxk rc lqyg&le>kSrk dsUnz
igq¡pus dk dksbZ dkj.k nf'kZr ugha fd;k tk ldkA
Lo;a izkFkhZx.k@oknhx.k ds izkFkZuk i= ds vuqlkj yEcs
vUrjky ls mHk; i{k vyx jg jgs gSa ftlds mijkUr
gh izLRkqr okn ;ksftr fd;k x;k gSA U;kf;d dk;Z o
e/;LFkrk dk;Z lkekU; :i ls lapkfyr gksus ds
mijkUr Hkh mHk; i{k izkFkhZx.k e/;LFkrk dsUnz ij
lqyg le>kSrk gsrq mijfLFkr ugha gks ldsA tSlk dh
U;k; dh ea'kk gSA

mijksDr rF; ,oa ifjfLFkfr;ksa esa vUrxZr
/kkjk 131⁄4ch1⁄2 fgUnw fookg vf/kfu;e o ifjokj U;k;ky;
vf/kfu;e ds lqlaxr mica/kksa ds vuqikyu esa
izkFkhZx.k@i{kdkjksa ds e/;LFkrk dsUnz mifLFkr gksus ds
funsZ'k ds vuqikyu ds fcuk iwoZ fu/kkZfjr frfFk fn0 0207-2022 ds iwoZ izkFkhZx.k@oknhx.k dk izkFkZuk i=
x&12 esa ;kfpr vuqrks"k dks Lohdkj djrs gq, izLrqr
okn dks rRdky vkKIr fd, tkus dk vkSfpR; iw.kZ
vk/kkj ugha gSA vr% izkFkZuk i= x&12 mijksDr
fo'ys"k.k ds vkyksd esa fujLr fd;k tkrk gSA
izkFkhZx.k@mHk; i{k fn0 15-03-2022 dks lqyg
le>kSrk gsrq e/;LFkrk dsUnz mifLFkr gksaA rRi'pkr
i=koyh fu;r frfFk fn0 02-07-2022 dks iqufoZpkj o
f}rh; eks'ku gsrq is'k gksA**

7. The orders dated 02.02.2022 and
07.03.2022 are under challenge in this
appeal.

8. Shri Ramesh Kumar Dwivedi,
learned counsel for the Appellant has
contended that the marriage between the
parties has irretrievably broken down and
the parties have settled their differences.
Relying upon a decision of the Apex Court
in the case of Amardeep Singh v. Harveen
Kaur, (2017) 8 SCC 746, the counsel
contends that in the absence of any chance
of reconciliation, the Family Court ought to
have exercised its discretion to waive of the
cooling period of six months in favour of
the Appellant.

9. Shri Akhilesh Kumar Pandey,
learned counsel for the Respondent has
supported the counsel for the Appellant and
has prayed that this appeal be allowed.

10. Heard the counsel for the parties
and perused the record.

11. Section 13-B of the Act reads as
under:-

"13-B.
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
6 All. Smt. Anamika Srivastava Vs. Anoop Srivastava
851
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 marriag

(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."

(emphasis supplied)

12. The three ingredients for initiating
proceedings under Section 13-B of the Act
for divorce by mutual consent are: firstly,
that the parties to the marriage have been
living separately for a minimum period of
one year. Secondly, they have not been able
to live together, and thirdly, they have
mutually agreed that marriage should be
dissolved.

13. Sub-section (1) of Section 13-B of
the Act is an enabling section. It enables
the parties to file a petition for divorce by
mutual consent. Sub-section (2) of Section
13-B lays down the procedure for the
parties to adhere to after expiry of six
months from the date of filing of the
petition for divorce by mutual consent. The
second motion, which as per Sub-section
(2) of Section 13-B is to be made not
earlier than six months after the date of
presentation of the petition, enables the
court to proceed with the case. If the court
is satisfied that the consent of the parties
was not obtained by force, fraud or undue
influence and they mutually agree that the
marriage should be dissolved, the court is
left with no other option but to pass a
decree of divorce.

14. Sub-section (2) of Section 13-B of
the Act, in unequivocal terms, provides that
the second motion has to be made not
earlier than six months from the date of
presentation of the petition before the
Court.

15. Section 14 of the Act provides
that notwithstanding anything contained
elsewhere in the Act, it shall not be
competent to the Court to entertain any
petition for dissolution of a marriage by a
decree of divorce, unless on the date of
presentation of the petition, one year had
elapsed since the date of marriage.
However, the proviso to Section 14
provides that the Court may, on application
made to it, in accordance with such rules as
may be made by the High Court, allow a
petition to be presented before one year has
elapsed since the date of marriage, on the
ground that the case is one of exceptional
hardship to the Appellant or of exceptional
depravity on the part of the respondent.

16. The provisions of the Hindu
Marriage Act evince an inherent respect for
the
institution
of
marriage,
which
contemplates the sacramental union of a
man and a woman for life. However, there
may be circumstances in which it may not
reasonably be possible for the parties to the
marriage to live together as husband and
852 INDIAN LAW REPORTS ALLAHABAD SERIES
wife. The Act, therefore has provisions for
annulment
of
marriage
in
specified
circumstances, which apply to marriages
which are not valid in the eye of law and
provisions of judicial separation and
dissolution of marriage by decree of
divorce on grounds provided in Section
13(1) of the said Act, which apply to cases
where it is not reasonably possible for the
parties to a marriage to live together as
husband and wife.

17. Section 13-B incorporated in the
Act with effect from 27.5.1976, which
provides for divorce by mutual consent, is
not intended to weaken the institution of
marriage. Section 13-B puts an end to
collusive divorce proceedings between
spouses,
often
undefended,
but
time
consuming by reason of a rigmarole of
procedures. Section 13-B also enables the
parties to a marriage to avoid and/or
shorten unnecessary acrimonious litigation,
where the marriage may have irretrievably
broken down and both the spouses may
have mutually decided to part. But for
Section 13-B, the defendant spouse would
often
be
constrained
to
defend
the
litigation, not to save the marriage, but only
to refute prejudicial allegations, which if
accepted by Court, might adversely affect
the defendant spouse.

18. Legislature has, in its wisdom,
enacted Section 13-B(2) of the Act to
provide for a cooling period of six months
from the date of filing of the divorce
petition under Section 13-B(1), in case the
parties should change their mind and
resolve their differences. After six months
if the parties still wish to go ahead with the
divorce, and make a motion, the Court has
to grant a decree of divorce declaring the
marriage dissolved with effect from the
date of the decree, after making such
enquiries as it considers fit.

19. Prior to the judgment in
Amardeep Singh (Supra), sub-section (2)
was treated to be mandatory in nature. In
Neeti Malviya v. Rakesh Malviya, (2010) 6
SCC 413, a Bench of two Judges of the
Apex Court, while dealing with the
question
as
to
whether
the
period
prescribed in Sub-section (2) of Section 13B of the Act could be waived off or
reduced by the Apex Court in exercise of
its jurisdiction under Article 142 of the
Constitution, observed as under:

"7.
As
already
stated,
the
language of the said provision is clear and
prima facie admits of no departure from the
time-frame laid down therein i.e. the
second motion under the said sub-section
cannot be made earlier than six months
after the date of presentation of the petition
under sub-section (1) of Section 13-B of
the Act."

20. However, in Amardeep Singh
(supra), the Apex Court considered the
question as to whether the minimum period
of six months stipulated under Section 13B(2) of the Act for a motion for passing
decree of divorce on the basis of mutual
consent was mandatory or it could be
relaxed in any exceptional situations and
after taking into account the statutory
provisions and the judgment on the issue
for the first time opined that the statutory
period of six months specified under subsection (2) of Section 13-B of the Act was
not mandatory and the court, in exceptional
circumstances, can waive the same, subject
to certain conditions specified therein.
Paragraph 19 of the said report is extracted
below:
6 All. Smt. Anamika Srivastava Vs. Anoop Srivastava
853

"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."

(emphasis supplied)

21. Thus, as held by the Apex Court in
the case of Amardeep Singh, the period
mentioned under Section 13-B(2) of the Act
is not mandatory but directory. It is open to
the Court concerned to exercise its discretion
in the facts and circumstances of each case.
However, the discretion to waive statutory
period of six months is a guided discretion for
consideration of interest of justice where
there is no chance of reconciliation and the
parties were already separated for a longer
period or contesting proceedings for a period
longer than the period mentioned in Section
13-B(2) of the Act.

22. In Amit Kumar v. Suman Beniwal,
2021 SCC OnLine SC 1270, the Apex Court
enumerated some of the factors which are to
be taken into consideration while exercising
the discretion of waiving the statutory period
of six months for moving a motion for
divorce and observed as under:-

"27. For exercise of the discretion
to waive the statutory waiting period of six
months for moving the motion for divorce
under Section 13B(2) of the Hindu Marriage
Act, the Court would consider the following
amongst other factors : -

i. the length of time for which the
parties had been married;

ii. how long the parties had stayed
together as husband and wife;

iii. the length of time the parties
had been staying apart;

iv. the length of time for which the
litigation had been pending;

v. whether there were any other
proceedings between the parties;

vi.
whether
there
was
any
possibility of reconciliation;

vii. whether there were any
children born out of the wedlock;
854 INDIAN LAW REPORTS ALLAHABAD SERIES

viii. whether the parties had
freely, of their own accord, without any
coercion or pressure, arrived at a genuine
settlement which took care of alimony, if
any, maintenance and custody of children,
etc."

23. Under the Act also, in respect of
the family matters, Parliament has made
several provisions for reconciliation. Under
Section 23(2)

"before proceeding to grant any
relief under this Act, it shall be the duty of
the court in the first instance, in every case
where it is possible so to do consistently
with the nature and circumstances of the
case, to make every endeavour to bring
about a reconciliation between the parties".

(emphasis supplied)

24. Sub-section (3) of Section 23 of
the Act further provides for methods to
facilitate the process, which reads as
follows:

"23. (3) For the purpose of aiding
the
court
in
bringing
about
such
reconciliation, the court may, if the parties
so desire or if the court thinks it just and
proper so to do, adjourn the proceedings
for a reasonable period not exceeding
fifteen days and refer the matter to any
person named by the parties in this behalf
or to any person nominated by the court if
the parties fail to name any person, with
directions to report to the court, as to
whether reconciliation can be and has
been, effected and the court shall in
disposing of the proceeding have due
regard to the report." (emphasis supplied)

25. The Family Courts Act was
introduced with the avowed object to set up
Family Courts for the settlement of family
disputes, where emphasis was to be laid on
conciliation
and
achieving
socially
desirable results without adherence to rigid
rules of procedure and evidence.

26. Section 9 of the Family Courts
Act makes it obligatory on the part of the
Family Court to endeavour, in the first
instance to effect a reconciliation or a
settlement between the parties to a family
dispute. During this stage, the proceedings
are informal and the rigid rules of
procedure do not apply. The said provision
reads as follows:

"9. Duty of Family Court to
make efforts for settlement.-- (1) In every
suit or proceeding, endeavour shall be
made by the Family Court in the first
instance, where it is possible to do so
consistent
with
the
nature
and
circumstances of the case, to assist and
persuade the parties in arriving at a
settlement in respect of the subject-matter
of the suit or proceeding and for this
purpose a Family Court may, subject to any
rules made by the High Court, follow such
procedure as it may deem fit.

(2) If, in any suit or proceeding,
at any stage, it appears to the Family Court
that there is a reasonable possibility of a
settlement between the parties, the Family
Court may adjourn the proceedings for
such period as it thinks fit to enable
attempts to be made to effect such a
settlement.

(3) The power conferred by subsection (2) shall be in addition to, and not
in derogation of, any other power of the
Family Court to adjourn the proceedings."

(emphasis supplied)
6 All. Smt. Anamika Srivastava Vs. Anoop Srivastava
855

27. No doubt Section 9 of the Family
Courts Act casts an obligation upon the
Family
Court
to
make
efforts
for
settlement. However, the Court is not
supposed to act in a mechanical manner,
and force the parties to engage in mediation
where the marriage has irretrievably broken
down. Section 9 itself states that the Court
is required to make an endeavor to assist
and persuade the parties to arrive at a
settlement. It also says that this has to be
done in consistence with the nature and
circumstances of the case. Therefore, it is
clear that reference of the parties to
mediation is not compulsorily required
where the facts and circumstances of the
case showcase that no purpose would be
served out of such reference. The endeavor
to get the matter settled is compulsory, but
the reference to mediation by the Family
Court itself is not.

28. At this juncture, it is relevant to
support the above conclusion by making
reference to certain extracts of a judgment
of the Apex Court in Naveen Kohli v.
Neelu Kohli, (2006) 4 SCC 558, wherein a
three Judge Bench of the Apex Court
observed as under:

"72.
Once
the
parties
have
separated and the separation has continued
for a sufficient length of time and one of them
has presented a petition for divorce, it can
well be presumed that the marriage has
broken down. The court, no doubt, should
seriously make an endeavour to reconcile the
parties; yet, if it is found that the breakdown
is irreparable, then divorce should not be
withheld. The consequences of preservation
in law of the unworkable marriage which has
long ceased to be effective are bound to be a
source of greater misery for the parties.

* * *

74. 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.

* * *

85.
Undoubtedly,
it
is
the
obligation of the court and all concerned
that the marriage status should, as far as
possible, as long as possible and whenever
possible, be maintained, but when the
marriage is totally dead, in that event,
nothing is gained by trying to keep the
parties tied forever to a marriage which in
fact has ceased to exist. In the instant case,
there has been total disappearance of
emotional substratum in the marriage. The
course which has been adopted by the High
Court
would
encourage
continuous
bickering, perpetual bitterness and may
lead to immorality.

86. In view of the fact that the
parties have been living separately for
more than 10 years and a very large
number of aforementioned criminal and
civil proceedings have been initiated by the
respondent against the appellant and some
proceedings have been initiated by the
appellant against the respondent, the
matrimonial bond between the parties is
beyond repair. A marriage between the
856 INDIAN LAW REPORTS ALLAHABAD SERIES
parties is only in name. The marriage has
been wrecked beyond the hope of salvage,
public interest and interest of all concerned
lies in the recognition of the fact and to
declare defunct de jure what is already
defunct de facto. To keep the sham is
obviously conducive to immorality and
potentially more prejudicial to the public
interest than a dissolution of the marriage
bond."

(emphasis supplied)

29. In the case of Amit Kumar
(Supra) the Apex Court has observed where
marriage
between
the
parities
has
irretrievably broken down and the parties
have mutually opted to part ways, it is
better to dissolve the marriage. Paragraphs
18 and 19 of the report are extracted
below:-

"18. The object of Section 13B(2)
read with Section 14 is to save the
institution of marriage, by preventing hasty
dissolution of marriage. It is often said that
"time is the best healer". With passage of
time, tempers cool down and anger
dissipates. The waiting period gives the
spouses time to forgive and forget. If the
spouses have children, they may, after
some time, think of the consequences of
divorce on their children, and reconsider
their decision to separate. Even otherwise,
the cooling period gives the couple time to
ponder and reflect and take a considered
decision as to whether they should really
put an end to the marriage for all time to
come.

19. Where there is a chance of
reconciliation, however slight, the cooling
period of six months from the date of filing of
the divorce petition should be enforced.
However, if there is no possibility of
reconciliation, it would be meaningless to
prolong the agony of the parties to the
marriage. Thus, if the marriage has broken
down irretrievably, the spouses have been
living apart for a long time, but not been able
to reconcile their differences and have
mutually decided to part, it is better to end
the marriage, to enable both the spouses to
move on with the life."

(emphasis supplied)

30. In the case at hand both the parties
are well educated. Admittedly, the parties
lived together only for three months and after
which they have separated on account of
irreparable differences. The parties have lived
apart for more than eleven years. The parties
have appeared before the Mediation and
Conciliation Centre of this Court and have
settled their dispute amicably. The parties are
unwilling to live together as husband and
wife. Even after eleven years of separation
the parties still want to go for divorce.
Considering that the parties had already
engaged in mediation before the Mediation
Centre of this Court, and had failed to
reconcile, no purpose would be served by
subjecting the parties to the same process
again, especially when they have been living
apart for several years, and the marriage has
irretrievably broken down. No useful purpose
would be served in keeping the petition
pending except to prolong their agony.

31. In view of the discussions made
above, the appeal is allowed.

32. The impugned orders dated
02.02.2022 and 07.03.2022 passed by the
Family Court are set aside. The statutory
waiting period of six months under Section
13-B(2) of the Act is waived.

33. Parties are directed to appear
before the Family Court on 30.05.2022.
6 All. Deepa Bajpai Vs. Dr. Ashish Mishra
857
The Family Court will forthwith pass a
decree of divorce in accordance with law.
----------
(2022)06ILR A857
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.05.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

First Appeal No. 104 of 2017
And
First Appeal No. 108 of 2017

Deepa Bajpai ...Appellant
Versus
Dr. Ashish Mishra ...Respondent

Counsel for the Appellant:
Sri Nilish Anand

Counsel for the Respondent:
Sri Anand Mani Tripathi, Sri Bhup Chandra
Singh, Saima Khan, Sri Vinay Kumar Dubey

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13-B - Divorce by mutual consent -
Coercion or fraud - Allegation of using force
and compulsion for signing the petition, how
far reliable - No FIR or complaint filed -
Application
containing
photograph
was
signed by wife and duly identified by her
counsel - Effect - Held, while passing the
impugned judgment, the court had inquired
with the parties to ascertain their free
consent/collusion and at that time also
appellant failed to narrate any fact of force
or coercion before the presiding officer -
Appellant has failed to prove that the
impugned
judgment
and
decree
was
obtained by playing any fraud or coercion
with appellant as well as with the trial court.
(Para 17 and 18)
B. Civil Law - Family Courts Act, 1984 -
Sections 19(1), 19 (2) & 20 - Civil Procedure
Code,1908 - Section 96(3) - O. 43 R. 1A -
Divorce by mutual consent - Maintainability
of Appeal against it - Applicability of
provision of CPC - Held, Family Court Act is
a special Act and according to Section 20,
the provisions of the Act have overriding
effect - Hence, the appeal against judgment
and decree u/s 13(B) is not maintainable.
(Para 20)
C. Civil Law - Civil Procedure Code,1908 - O.
23 R. 3A - Divorce by mutual consent -
Compromise decree - Maintainability of Suit
against it - Held, on the grounds of any
fraud, misrepresentation or coercion an
application to set aside the consented
decree is maintainable before the same
court which passed such order or decree -
No separate suit is maintainable - K. Rajam
Raju case relied upon. (Para 22)
D. Custody of minor child - Paramount
consideration - In the matter of custody of
minor, the paramount consideration for the
court to view is as to what is conducive to
the welfare of minor child - Held, for
welfare of her minor daughter, the appellant
always has a liberty to move application for
the custody of her minor daughter before
appropriate court. (Para 27)
Appeal dismissed (E-1)
List of Cases cited :-
1. Nathu Lal Vs Raghuvir Singh & ors. AIR 1926
Alld. 50
2. Smt. Sureshta Devi Vs Om Prakash (1991) 2
SCC 25
3. K.Rajam Raju & ors. Vs Smt. P.Rangamma &
ors. 2006 (4) ALD 61
4. Jamna Devi & ors. Vs Sarswati Devi & ors.
MANU/HP/1692/2018
5. Pushpa Devi Bhagat (D) through L.R. Smt.
Sadhna
Rai
Vs
Rajinder
Singh
&
ors.
MANU/SC/3016/2006
6. Rosy Jacob Vs Jacob A. Chakramakkal;
MANU/SC/0260/1973

(Delivered by Hon'ble Narendra Kumar
Johari, J.)