Manish Kumar Bhatiya vs Smt. Swati @ Nauratna

By way of this petition, the petitioner and the respondent both are seeking quashment of order dated 21.08.2020 passed in case No.RCSHM 68A/2020 by the Principal Judge, Family Court, Ratlam, by which learned Judge has declined to reduce the six months of cooling period.

The marriage between the petitioner and the respondent was solemnized on 18.05.1997 under the Hindu Customs and Rituals. Out of the aforesaid wedlock, respondent gave a birth to a son namely; Divyam, who is at present 20 years of age. Respondent had left the house of the petitioner on 23.05.2009, due to certain unavoidable circumstances and started living with her parents and since then they are living separately. Respondent lodged an FIR against the petitioner which was registered as Criminal Case No. 1285/2009. Vide judgment dated 01.07.2016, petitioner had been acquitted. Thereafter, respondent filed an application u/S.125 of Cr.P.C. seeking maintenance before the Family Court.

The Family Court has fixed the maintenance of Rs.7,000/- per month, against which the petitioner has filed Criminal Revision No.1434/2014 and the respondent wife has filed a Criminal Revision No.82/2015 before this Court. Both the revisions are pending and by way of interim relief, the petitioner is paying maintenance to the respondent @ 3,000/- per month.

During pendency of these cases, now the compromise has been arrived at between the parties and they have decided to a take divorce by way of mutual consent. Thereafter, they have filed an application under Section 13-B of the Hindu Marriage Act for divorce by way of mutual consent before the Family Court, Ratlam. That under Section 13-B of Hindu Marriage Act, there is a provision of six months cooling period from the first date of motion before grant of divorce and according to which before expiry of said period, divorce by mutual consent cannot be granted by family Court, therefore, the petitioner and respondent have jointly filed this petition for relaxation on this cooling period.

Both have recorded their statements on the first date of hearing and thereafter, now the Court has fixed the case after six months for finalization of divorce proceedings.

The similar issue came up before the Hon'ble Apex Court in case of Amardeep Singh Vs. Haveen Kaur reported at (2017) 8 SCC 746 in which the Apex Court after considering all the situations directed the family Court to satisfy himself and if case is made out to waive the statutory period under Section 13B (2), it can do so. The conditions as decided by the Apex Court in para-18 reads as under:-

18€. 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 13B(2), it can do so after considering the following :

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

Today respondent/wife is present before this Court through video conferencing and submits that she has settled all disputes and differences with the petitioner and want divorce by waiving of six months. Since the parties have decided to take divorce by way of mutual consent and they are living separately since last ten years, hence there is no possibility of living as husband and wife in near future even after expiry of six months.

Hence, the impugned order dated 21.08.2020 is set aside. The matter is remitted back to the Family Court, Ratlam to consider their application for divorce by way of mutual consent under Section 13B (2) of Hindu Marriage Act without waiting for expiry of cooling period but subject to completing the procedure as prescribed under Section 23 (2) of Hindu Marriage Act, under Section 9 of Family Court Act and Order XXXIIA Rule 3 of C.P.C.

As per settlement petitioner shall pay the Rs.5,25,000/- as permanent alimony, therefore, the respondent shall not claim the monthly maintenance. The settlement has already been filed before the Family Court along with application u/S.13-B of the Hindu Marriage Act.

Both the parties are directed to appear before the Family Court on 30th September, 2020.

Certified copy as per rules.