divorce with mutual consent
ARVIND JAIN
(Querist) 24 September 2008
This query is : Resolved
In case of divorce with mutual consent can 6 months waiting can be waived ? any cae law on the subject?
SANJAY DIXIT
(Expert) 24 September 2008
In my opinion 'NO'.
6 months waiting period is manadatory and can't be waived out.
Adv.Shine Thomas
(Expert) 24 September 2008
Incase of exigencies,the court may waive the waiting period of 6 months on the application of both the spouses.(recent SC order)
Srinivas.B.S.S.T
(Expert) 25 September 2008
Court can waive off the 6 months period upon the application filed by both the parties.
ARVIND JAIN
(Querist) 25 September 2008
MR SHINE THOMAS CAN YOU GIVE ME CITATION OF S.C. PLEASE.
arunprakaash.m.
(Expert) 25 September 2008
It is a mandatory period provided in the section itself. No citation is required.
ARVIND JAIN
(Querist) 25 September 2008
PLEASE FIND TWO JUDGMENTS ON THE CONDONATION OF 6 MONTH PERIOD.YOU MAY REFER TO AIR 1990 DELHI 146 ALSO.
1.IN THE HIGH COURT OF PATNA
F.A. No. 570 of 2000
Decided On: 12.11.2003
Appellants: Prabhat Shekhar
Vs.
Respondent: Smt. Poonam Kumari
Hon'ble Judges:
P.K. Sinha, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Parmeshwar Prasad and Manoj Kr. Sinha, Advs.
For Respondents/Defendant: Diwakar Upadhayaya, Adv.
Subject: Family
Catch Words
Mentioned IN
Disposition:
Application allowed
Case Note:
Hindu Marriage Act, 1955 - Section 13--Petition for divorce--Compromise decree for dissolution of marriage--A separation had already taken place not only physically but mentally also--Marriage broken down irretrievably--No cope to bring in any reconciliation between them--Any delay in granting - (SIC)freedom from the nuptial bonds, would only amount to keep the(SIC) mental stress--Granting of gap of six months period as provided untiv Section 13-B of the dispensed with--Hence, appellant granted divorce ana marriage dissolved.
JUDGMENT
P.K. Sinha, J.
1. This first appeal stems out of the judgment of the 1st Additional District Judge, Bhagaipur in Matrimonial Case No. 31 of 1992 in which the applicant, Prabhat Shekhar, had filed a petition for divorce under Section 13 of the Hindu Marriage Act ("the Act" in short) against his wife Smt. Poonam Kumari the respondent here.
2. Having considered the materials brought on the record and after having failed to bring in reconciliation between the husband and wife, by judgment dated 7-9-2000 the application for divorce was dismissed on contest but without cost. During pendency of this appeal the appellant and respondent filed a joint application under Order XXIII, Rule 3 of the respondent Code of Civil Procedure read with Section 13(B) of the Act. As per this application the appellant has withdrawn all the allegations of adulatery levelled against the respondent which was incorporated by way of amendment in the matrimonial petition in the lower Court and both pray that a compromise decree for dissolution of marriage be passed. The appellant further states in this application that he is not ready to proceed with further hearing of the appeal in case this compromise petition is allowed, both also agreeing to bear their own litigation costs. This was signed by the appellant as well by respondent and their Counsels.
3. When this matter was heard this Court called both husband and wife on 6-11-2003 in the Chambers to make an attempt to being in reconciliation between the two. Attempt to bring in reconciliation was made in camera in absence of their lawyers. As has been recorded in order dated 7-11-2003 the husband said that they had remained separate since October, 1991, the marriage having taken place. on 3-8-1991. The respondent also agreed that physically they had been living separately since two months after their marriage. Though she had found contested the application in the lower Court but in this Court she said that she felt that having been separated with her husband for so many years, and both sides having no incumberance meaning thereby that they were issuless, she strongly felt that a separation had already taken place, not only physically, but also mentally and so far she was concerned, the marriage had broken down irretrievably. Similar sentiments were also expressed by the appellant. Both of them said that now no reconciliation between them was possible and they had consented for dissolution of their marriage out of their own free will as continuing with the marriage would not serve arty purpose.
4. The attempt to bring in reconciliation having failed, on the application both sides were heard.
5. Such a petition under Section 13(B) of the Act ordinarily has to be presented before the District Court having jurisdiction to entertain that. However, the parties have fought this case since the year 1992 and 11 valuable years of their lives have been weath
Srinivas.B.S.S.T
(Expert) 25 September 2008
Thanks Aravind, really helpful information.
SANJAY DIXIT
(Expert) 25 September 2008
Dear Arvind,
Thanks for providing us the important case laws.
Whether they would applicable in lower courts also.
In my opinion the Inherent Powers of High Courts & Supreme Court are infinite & they can't be used by a lower court.
The issue is important, so I am leaving it open.
Regards...
Sanjay Dixit Adv.
G. ARAVINTHAN
(Expert) 26 September 2008
if both file affidavit stating that they were living separately 6 months before the date of the petition, then court can waive that term
Guest
(Expert) 26 September 2008
Thank you Arvind Jain good input.
ritu bhadana
(Expert) 03 April 2009
thanx mr. arvind for providing the valuable info
RAKHI BUDHIRAJA ADVOCATE
(Expert) 25 September 2008
