CASE TITLE:
Smt Anamika Srivastav Vs. Anoop Srivastava
DATE OF ORDER:
27TH MAY,2022
JUDGE(S):
Hon’ble Justices Rakesh Srivastava, Hon'ble Ajai Kumar Srivastava-I
PARTIES:
PETITIONER: Smt. Anamika Srivastav
RESPONDENT: Anoop Srivastava
IMPORTANT PROVISIONS
Section 9 of the Family Courts Act
SUBJECT
The Allahabad High Court (Lucknow Bench) has stated that the Court should not act mechanically and force the parties to engage in mediation when the marriage has irretrievably broken down. The Bench of Justices Rakesh Srivastava and Ajai Kumar Srivastava-I also stated that referral of the parties to mediation is not mandatory where the facts and circumstances of the case show that such referral would serve no purpose.
BRIEF FACTS
- The Court was hearing an appeal filed by Anamika Srivastava (wife) under Section 19 of the Family Courts Act, 1984, challenging a Family Court order (Principal Judge, Family Court, Barabanki).
- The family court denied her and the Respondent's (husband's) request to waive the six-month waiting period required under Section 13-B(2) of the Hindu Marriage Act, 1955 [Divorce by mutual consent] for a motion to grant a divorce decree based on mutual consent.
- Before the Family Court, the parties stated that they have been living apart for more than ten years; that before the Mediation Centre, the parties had freely, on their own accord, and without coercion or pressure, reached a joint settlement. In these circumstances, the six-month waiting period should be waived and a divorce decree issued immediately.
- However, the Family Court denied their application on the grounds that, according to the order, the parties had not appeared before the mediation centre and, as a result, there was no good reason to waive the statutory period of six months.
- It should be noted that Section 13-B(2) of the Hindu Marriage Act provides for a six-month cooling period from the date of filing of the divorce petition under Section 13-B(1) in the event that the parties change their minds and resolve their differences. If the parties still want to divorce after six months and file a motion, the Court must grant a divorce decree declaring the marriage dissolved with effect from the date of the decree after making such inquiries as it considers fit.
- However, in this case, the parties requested that the court waive the 6-month waiting period because their marriage had irreparably broken down.
ANALYSIS BY THE COURT
- The Court noted that the discretion to waive the statutory period of six months is a guided discretion for consideration of the interests of justice where there is no chance of reconciliation and the parties have already been separated for a longer period or have been contesting proceedings for a longer period than the period specified in Section 13-B(2) of the Act.
- Furthermore, the Court noted that Section 9 of the Family Courts Act requires the Family Court to attempt, in the first instance, to effect reconciliation or settlement between the parties to a family dispute.
CONCLUSION
- In this case, both parties are well educated. To be sure, the parties only lived together for three months before splitting up due to irreconcilable differences. The couple has been separated for over eleven years. The parties appeared before this Court's Mediation and Conciliation Centre and reached an amicable settlement.
- The parties are adamant about not living together as husband and wife. Even after ten years of separation, the parties want to divorce. Given that the parties had previously engaged in mediation before this Court's Mediation Centre and had failed to reconcile, subjecting the parties to the same process again would serve no purpose, especially since they have already been living apart for several years
- As a result, the High Court waived the statutory waiting period of six months under Section 13-B(2) of the Act.
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