WP/23469/2017 of DEEPAK RAHINJ Vs SMT. VARSHA @ KIRAN @ RINKI on 28 December 2017

HIGH COURT OF MADHYA PRADESH; BENCH AT INDOREW.P. No.23469/2017Deepak Rahinj Vs. Smt. Varsha @ Kiran @ RinkiIndore, dated 28.12.2017

Shir Praveen Pal, learned counsel for the petitioner.

Shri A.S. Rahtore, learned counsel for the respondent.

The petitioner and the respondent have jointlyapproached this Court by way of the present writ petitionbeing aggrieved by order dated 15.12.2017 passed by FirstAdditional Principal Judge, Family Court Indore, who hasdeclined to reduce the six months of colling period.

The marriage between the petitioner and therespondent has solemnized on 16.05.2005 under the HinduRights and Ritual. After the marriage, two children namelyUday and Aishwarya were borned, who are at present 8 and10 years old respectively. Due to certain unavoidablecircumstances, they have started living separately and nowby way of mutual consent, they filed an application underSection 13-B of Hindu Marriage Act for divorce by way ofmutual consent.

That under Section 13-B of Hindu Marriage Act,there is a provision of six months colling period beforegrant of divorce and according to which before expiry ofsaid period, divorce by mutual consent cannot be granted byfamily Court, therefore, the petitioner and respondent havejointly filed an application for reducing the colling period.

The learned family Court after considering the saidapplication, rejected the same that after filing an applicationon 30.11.2017, one month has not been reduced and theproceedings under Order XXXIIA Rule 3 of C.P.C has not been completed.

The similar issue came up before the Hon'ble ApcxCourt in case of Amardeep Singh Vs. Haveen Kaurreported at (2017) 8 SCC 746 in which the Apex Courtafter considering all the situations directed the family Courtto satisfy himself and if case is made out to waive thestatutory period under Section 13B (2), it can do so. Theconditions as decided by the Apex Court in para-18 reads as under:- “18. Applying the above to the presentsituation, we are of the view that where the Courtdealing with a matter is satisfied that a case is madeout to waive the statutory period under Section13B(2), it can do so after considering the following :

i) the statutory period of six monthsspecified in Section 13B(2), in additionto the statutory period of one yearunder Section 13B(1) of separation ofparties is already over before the firstmotion itself;

ii) all efforts for mediation/conciliationincluding efforts in terms of OrderXXXIIA Rule 3 CPC/Section 23(2) ofthe Act/Section 9 of the Family CourtsAct to reunite the parties have failedand there is no likelihood of success inthat direction by any further efforts;

iii) the parties have genuinely settledtheir differences including alimony,custody of child or any other pendingissues between the parties;

iv) the waiting period will only prolongtheir agony.”

Today both the parties are present before this Courtjointly submit that they have settled their disputes anddifferences and want divorce. Mediation and conciliation held between them, has also been failed and waiving periodwill only prolong their agony, and therefore, their collingperiod liable to be reduced.

Hence, the impugned order dated 15.12.2017 is setaside. The matter is remitted back to the family Court toconsider their application for divorce by way of mutualconsent under Section 13B (2) of Hindu Marriage Actwithout waiting for expiry of colling period but subject tocompleting the procedure as prescribed under Section 23 (2)of Hindu Marriage Act, under Section 9 of Family CourtAct and Order XXXIIA Rule 3 of C.P.C.

Both the parties are directed to appear before the10[th].family Court on January 2018

Certified copy as per rules.

(Vivek Rusia)Vacation Judge

Conclusion

Digitally signed by Ravi Prakash DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, Ravi PrakashpostalCode=452001, st=Madhya Pradesh, 2.5.4.20=8c41d94e3639781a0083754cf33213a20de4d0ca6c70fb2b3437951134024cc4, cn=Ravi Prakash Date: 2018.01.05 12:10:12 +05'30'