MANU/UP/0270/2021

Equivalent Citation: 2021(2)ADJ388, AIR2021All164, 2021(3) ALJ 101, 2021 (147) ALR 94, 2021 1 AWC 864All, 2021(3)HLR299

IN THE HIGH COURT OF ALLAHABAD

First Appeal Defective No. 32 of 2021
Decided On: 10.02.2021
Appellants: Priyanka Chauhan
Vs.
Respondent: Principal Judge Family Court and Ors.
Hon'ble Judges/Coram:
M.C. Tripathi and Sanjay Kumar Pachori, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Pankaj Agarwal
For Respondents/Defendant: Utkarshni Singh
Case Note:
Hindu Marriage Act, 1955 - Sections 13B (2) and 23(1)(bb)--Divorce
petition--For a decree of dissolution of marriage by mutual consent--Waiver
of period of 6 months--Petition for dissolution of marriage by a decree of
divorce--May be presented to the Principal Judge Family Court by both
parties together on 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 they have mutually agreed that marriage should be dissolved--Cooling
off period of six months is directory--Court concerned may waive off the
said period where proceedings are pending in exceptional situation--In the
instant case both parties present in the Court made categorical statement
that within four days of solemnisation of the marriage they departed and
even the marriage has not been consummated--Admission of the parties
that there is no force, fraud or undue influence while reaching such
decision--No possibility of resuming cohabitation--Impugned order of the
Court below set aside--Application under Section 13-B (2) allowed--First
appeal allowed. [19] and [31] to [33]
JUDGMENT
1. Heard Shri Pankaj Agarwal, learned counsel for the appellant (wife) and Ms.
Utkarshni Singh, learned counsel for second respondent (husband).
2. The exemption application is allowed. Let the appeal be given regular number.
3 . Present first appeal has been preferred assailing the validity of order dated
12.1.2021 passed by Incharge Principal Judge, Family Court, Gautam Budh Nagar in
Divorce Petition No. 592 of 2020 Smt. Priyanka Chauhan v. Saurabh Chauhan, by
which application 17/C has been rejected by learned Family Court without assigning
any reason. The application 17/C has been filed by the appellant and second
respondent supported with a joint affidavit 18/C for waiving six months statutory
period for second motion before granting a decree for mutual divorce.

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 4. The question, which arises for consideration in the instant appeal under Section 19
of the Family Courts Act is whether the minimum period of six months stipulated
under Section 13B(2) of The Hindu Marriage Act, 1955 (the Act) for motion of
passing of decree of divorce on the basis of mutual consent may be relaxed in any
exceptional situation.
5 . The brief facts leading to the present appeal are that, a Divorce Petition for a
decree of dissolution of marriage by mutual consent, was filed by the appellant and
second respondent under Section 14 of the Act which was initially registered as
Miscellaneous Case No. 89 of 2020, after expiry of one year from the date of
marriage, registered as Original Suit. A joint application 17/C under sub-section (2)
of Section 13-B the Act, alongwith joint affidavit 18/C has been filed by the parties
stating that the marriage of appellant and second respondent was solemnized on
11.12.2019 with Hindu rites and rituals. The appellant is resident of Rohini, Delhi,
whereas the second respondent is resident of Noida, Gautam Budh Nagar. It is
contended that from the date of marriage the appellant lived only four days at her
matrimonial house and from 16.12.2019 the appellant started residing at her parental
house at New Delhi. On account of temperamental and ideological differences the
marriage could not be consummated and both are residing separately from
16.12.2019. It is contended that various efforts were made by the family members of
both the parties and their well wishers but they could not arrived at settlement to live
together a happy married life. When all the efforts for reconciliation stands failed,
they ultimately arrived into a settlement in writing dated 24.7.2020 for taking mutual
divorce. In view, thereof, the details of articles mentioned in Schedule-A of the
mutual settlement dated 24.7.2020 was handed over to the appellant in presence of
all the well-wishers. Through mutual settlement dated 24.7.2020 it was further
agreed that the articles mentioned in Schedule-B of the agreement shall be put into
custody of one Sudhir Kumar son of Sri Jhanda Singh being closed relative and well-
wisher of both the parties, which shall be handed over to the appellant after the
second motion of divorce petition and recording of statement of appellant in divorce
petition to be filed by mutual consent. It is being claimed that without there being
any undue influence, threat or coercion the couple decided to dissolve their marriage
by a decree of divorce.
6 . The Family Court by the impugned order rejected the application 17/C on the
ground that till date no effort has been made by the Court for reconciliation and
mediation between the parties, without considering the peculiar facts of the case.
While they pleaded that marriage could not be consummated due to temperamental
and ideological differences and both are residing separately from 16.12.2019 i.e.
more than one year from the marriage; all the efforts for reconciliation stands failed;
they arrived into a settlement in writing for taking a mutual divorce, articles
mentioned in Schedule-A of the mutual settlement dated 24.7.2020 was handedover
to the appellant and the articles of both the parties as mentioned in Schedule-B of the
settlement put into the custody of one Sudhir Kumar; the parties have genuinely
settled their differences including alimony and the statutory period of one year of
separation of parties is already over.
7 . Section 23 of the Act also provides the procedure regarding the effort to make
endeavour to bring about a reconciliation between the parties. Sub-section (1)(bb) of
Section 23 of the Act provides that before proceeding to grant any relief under this
Act, the Court is to be satisfied that a divorce is sought on the ground of mutual
consent, such consent has not been obtained by force, fraud or undue influence.

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 8 . Hon'ble the Supreme Court has consistently taken the view that recording of
reasons is an essential feature of dispensation of justice. A litigant who approaches
the Court with any grievance in accordance with law is entitled to know the reasons
for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of
reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected
party and secondly, more particularly, hamper the proper administration of justice.
These principles are not only applicable to administrative or executive actions, but
they apply with equal force and, in fact, with a greater degree of precision to judicial
pronouncements. A judgment without reasons causes prejudice to the person against
whom it is pronounced, as that litigant is unable to know the ground which weighed
with the Court in rejecting his claim and also causes impediments in his taking
adequate and appropriate grounds before the higher Court in the event of challenge
to that judgment.
9. It is well-settled position of law that failure to give reasons amounts to denial of
justice. Reasons are live links between the mind of the decision taker to the
controversy in question and the decision or conclusion arrived at. Reasons substitute
subjectivity by objectivity. The emphasis on recording reasons is that if the decision
reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually
impossible for the Courts to perform their appellate function or exercise the power of
judicial review in adjudging the validity of the decision. Right to reason is an
indispensable part of a sound judicial system; reasons at least sufficient to indicate
an application of mind to the matter before Court. Another rationale is that the
affected party can know why the decision has gone against him. One of the salutary
requirements of natural justice is spelling out reasons for the order made; in other
words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous
with a judicial or quasi-judicial performance.
10. The parties have sought waiver of a period of six months for the second motion
on the ground that they have been living separately for last more than one year and
there is no possibility of their reunion. Any further delay will affect chances of their
resettlement in life.
1 1 . Learned counsel for the appellant has submitted that there is no chance of
reconciliation between the parties due to their temperamental and ideological
differences. The marriage has not been consummated and just after four days of
marriages both are living separately.
12. Learned counsel for the appellant further submitted that the object of the cooling
off the period was to safeguard against a hurried decision if there was, otherwise,
possibility of differences being reconciled. The object was not to perpetuate a
purposeless marriage or to prolong the agony of the parties when there is no chance
of reconciliation.
13. Learned counsel for the second respondent has also supported the arguments so
raised by learned counsel for the appellant. She has also submitted that there is no
chances of reconciliation and for the interest of the parties this Court may rescue and
reprieve the parties.
14. On the matter being taken up on 29.1.2021, on the request of learned counsel
for the appellant the matter was adjourned and posted for hearing on 2.2.2021. Ms.
Utkarshni Singh, learned counsel has entered appearance on behalf of second
respondent. The appellant and the second respondent are also present in the Court.

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 Both the parties made a categorical statement before the Court that there is no
chance of reconciliation. It has also been informed that the appellant has completed
her C.A. Intermediate. The second respondent is working in IT company. It is
submitted that both are educated and consciously they have taken decision to move
on independently. Parties have also made statement that there is no chance of
reconciliation and their families are also of the same opinion.
15. We have heard rival submissions, perused the record and also considered the
statement so given by the parties.
16. The Hindu Marriage Act, 1955 is a special Act dealing with the provisions relating
to marriages, restitution of conjugal rights and judicial separation as also nullity of
marriage and divorce. (vide: Jagraj Singh v. Birpal Kaur, MANU/SC/7102/2007 :
(2007) 2 SCC 564) Under Section 13 of the Act marriage can be dissolved by decree
of divorce on the various grounds enumerated therein and the same has been further
qualified by Section 14 that no petition for divorce to be presented within one year of
the marriage. However, an exception has been carved out by inserting a proviso in
Section 14, with an intention to mollify the effect of the one year's limit in very
exceptional cases as the proviso to Section 14 of the Act engrafts a very important
qualification on the general rule laid down in the section that no petition for
dissolution of marriage by a decree of divorce can be entertained by the Court before
the statutory period expires. It enables the Court in the exercise of its discretion to
grant leave to present such petition before the expiry of the one year's limit in a case
of 'exceptional hardship' or 'exceptional depravity' to the appellant.
17. In catena of cases relating to matrimonial dispute, Hon'ble the Apex Court has
observed that matrimonial disputes have to be decided by Courts in a pragmatic
manner keeping in view the ground realities. The fact which pricked the conscience of
the Court is that even though the marriage was solemnized on 11.12.2019, the
appellant stayed in her matrimonial house only for four days and from 16.12.2019
started living in her parental house. The marriage has not been consummated and
they are voluntarily inclined to withdraw from the relationship due to temperamental
and ideological differences, which is stated to be not compromised, and they could
not enjoy their happy married life. In such situation, continuance of litigation will
cause mental and physical harassment to them unnecessarily, when both of them are
not inclined to continue with the relationship at all. 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. Under the traditional Hindu Law, as it stood prior to the
statutory law on the point, marriage is a sacrament and cannot be dissolved by
consent. The Act enabled the Court to dissolve marriage on statutory grounds. By
way of amendment in the year 1976, the concept of divorce by mutual consent was
introduced. However, Section 13-B(2) contains a bar to divorce being granted before
six months of time elapsing after filing of the divorce petition by mutual consent. The
said period was laid down to enable the parties to have a rethink so that the Court
grants divorce by mutual consent only if there is no chance for reconciliation. The
object of the provision is to enable the parties to dissolve a marriage by consent if
the marriage has irretrievably broken down and to enable them to rehabilitate them

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 as per available options. The amendment was inspired by the thought that forcible
perpetuation of status of matrimony between unwilling partners did not serve any
purpose. The object of the cooling off the period was to safeguard against a hurried
decision if there was, otherwise, possibility of differences being reconciled. The
object was not to perpetuate a purposeless marriage or to prolong the agony of the
parties when-mere was no chance of reconciliation.
18. So far as determining the question, whether, the said period is mandatory or
directory, the said aspect has been considered by Hon'ble the Apex Court in
Amardeep Singh v. Harveen Kaur, MANU/SC/1134/2017 : (2017) 8 SCC 746. The
relevant portion of the said judgment is quoted as under:
"6. This Court noted that power under Article 142 had been exercised in
cases where the Court found the marriage to be totally unworkable,
emotionally dead, beyond salvage and broken down irretrievably. This power
was also exercised to put quietus to all litigations and to save the parties
from further agony [4. Manish Goel v. Rohini Goel, MANU/SC/0106/2010 :
(2010) 4 SCC 393, para 11, noting earlier decisions in Ramesh Chander v.
Savitri, MANU/SC/0162/1995 : (1995) 2 SCC 7; Kanachan Devi v. Promod
Kumar Mittal, MANU/SC/1515/1996 : (1996) 8 SCC 90; Anita Sabharwal v.
Anil Sabharwal, (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri,
MANU/SC/0283/1997 : (1997) 4 SCC 226; Koran v. Sharad Dutt,
MANU/SC/1415/1999 : (2000) 10 SCC 243; Swati Verma v. Ranjan Verma,
MANU/SC/0907/2003 : (2004) 1 SCC 123 : 2004 SCC (Cri.) 25; Harpit Singh
Anand v. State of W.B., MANU/SC/0782/2003 : (2004) 10 SCC 505: 2004
SCC (Cri.) 1911; Jimmy Sudarshan Purohit v. Sudorshan Sharad Purohit,
(2005) 13 SCC 410; Durga Prasanna Tripathy v. Arundhati Tripathy,
MANU/SC/0500/2005 : (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli,
MANU/SC/1387/2006 : (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal
Kumar Ghosh, MANU/SC/5143/2006 : (2007) 2 SCC 220; Rishikesh Sharma
v. Saroj Sharma, MANU/SC/8607/2006 : (2007) 2 SCC 263; Samar Ghosh v.
Jaya Ghosh, MANU/SC/1386/2007 : (2007) 4 SCC 511 and Satish Sitole v.
Ganga, MANU/SC/7822/2008 : (2008) 7 SCC 734: (2008) 3 SCC (Cri.) 225].
This view was reiterated in Poonam v. Sumit Tanwar, MANU/SC/0187/2010 :
(2010) 4 SCC 460 : (2010) 4 SCC (Cri.) 177.
1 4 . The learned amicus submitted that waiting period enshrined under
Section 13-B(2) of the Act is directory and can be waived by the Court where
proceedings are pending, in exceptional situations. This view is supported by
judgments of the Andhra Pradesh High Court in K. Omprakash v. K. Nalini,
MANU/AP/0119/1986 : AIR 1986 AP 167 (DB); Karnataka High Court in
Roopa Reddy v. Prabhakar Reddy, MANU/KA/0003/1994 : AIR 1994 Kar 12
PB); Delhi High Court in Dhanjit Vadra v. Smt. Beena Vadra,
MANU/DE/0024/1990 : AIR 1990 Del 146 and Madhya Pradesh High Court in
Dinesh Kumar Shukla v. Smt. Neeta, MANU/MP/0101/2005 : AIR 2005 MP
106 (DB). Contrary view has been taken by Kerala High Court in M. Krishna
Preetha v. Dr. Jayan Moorkkanatt, MANU/KE/0351/2010 : AIR 2010 Ker 157.
It was submitted that Section 13-B(1) relates to jurisdiction of the Court and
the petition is maintainable only if the parties are living separately for a
period of one year or more and if they have not been able to live together
and have agreed that the marriage be dissolved. Section 13-B(2) is
procedural. He submitted that the discretion to waive the period is a guided
discretion by consideration of interest of justice where there is no chance of

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 reconciliation and parties were already separated for a longer period or
contesting proceedings for a period longer than the period mentioned in
Section 13-B(2). Thus, the Court should consider the questions:
(i) How long parties have been married?
(ii) How long litigation is pending?
(iii) How long they have been staying apart?
(iv) Are there any other proceedings between the parties?
(v) Have the parties attended mediation/conciliation?
(vi) Have the parties arrived at genuine settlement which takes care
of alimony, custody of child or any other pending issues between the
parties?
15. The Court must be satisfied that the parties were living separately for
more than the statutory period and all efforts at mediation and reconciliation
have been tried and have failed and there is no chance of reconciliation and
further waiting period will only prolong their agony.
1 6 . We have given due consideration to the issue involved. Under the
traditional Hindu Law, as it stood prior to the statutory law on the point,
marriage is a sacrament and cannot be dissolved by consent. The Act enabled
the Court to dissolve marriage on statutory grounds. By way of amendment
in the year 1976, the concept of divorce by mutual consent was introduced.
However, Section 13-B(2) contains a bar to divorce being granted before six
months of time elapsing after filing of the divorce petition by mutual consent.
The said period was laid down to enable the parties to have a rethink so that
the Court grants divorce by mutual consent only if there is no chance for
reconciliation.
17. The object of the provision is to enable the parties to dissolve a marriage
by consent if the marriage has irretrievably broken down and to enable them
to rehabilitate them as per available options. The amendment was inspired by
the thought that forcible perpetuation of status of matrimony between
unwilling partners did not serve any purpose. The object of the cooling-off
the period was to safeguard against a hurried decision if there was otherwise
possibility of differences being reconciled. The object was not to perpetuate a
purposeless marriage or to prolong the agony of the parties when there was
no chance of reconciliation. Though every effort has to be made to save a
marriage, if there are no chances of reunion and there are chances of fresh
rehabilitation, the Court should not be powerless in enabling the parties to
have a better option.
18. In determining the question whether provision is mandatory or directory,
language alone is not always decisive. The Court has to have the regard to
the context, the subject-matter and the object of the provision. This
principle, as formulated in Justice G.P. Singh's "Principles of Statutory
Interpretation" (9th Edn., 2004), has been cited with approval in Kailash v.
Nanhku, MANU/SC/0264/2005 : (2005) 4 SCC. 480 as follows:(SCC pp. 496-
97, para 34)

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 '34.....The study of numerous cases on this topic does not lead to
formulation of any universal rule except this that language alone
most often is not decisive, and regard must be had to the context,
subject-matter and object of the statutory provision in question, in
determining whether the same is mandatory or directory. In an oft-
quoted passage Lord Campbell said: 'No universal rule can be laid
down as to whether mandatory enactments shall be considered
directory only or obligatory with an implied nullification for
disobedience. It is the duty of Courts of justice to try to get at the
real intention of the legislature by carefully attending to the whole
scope of the statute to be considered.' (p. 338)
'For ascertaining the real intention of the legislature', points out
Subbarao, J. 'the Court may consider inter alia, the nature and
design of the statute, and the consequences which would follow from
construing it the one way or the other; the impact of other
provisions whereby the necessity of complying with the provisions in
question is avoided; the circumstances, namely, that the statute
provides for a contingency of the non-compliance with the
provisions; the fact that the non-compliance with the provisions is or
is not visited by some penalty; the serious or the trivial
consequences, that flow therefrom; and above all, whether the
object of the legislation will be defeated or furthered'. If object of
the enactment will be defeated by holding the same directory, it will
be construed as mandatory, whereas if by holding it mandatory
serious general inconvenience will be created to innocent persons
without very much furthering the object of enactment, the same will
be construed as directory."
1 9 . 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."

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 19. In the aforesaid case, Hon'ble the Apex Court has considered Section 13-B(2) of
the Act, divorce by mutual consent and cooling off period of six months and held that
the said period is directory with certain conditions under which the Court concerned
may waive off the said period. The waiting period enshrined under Section 13-B(2) of
the Act is directory and can be waived by the Court, where, proceedings are pending,
in exceptional situation. Hon'ble the Apex Court in Amardeep Singh (Supra) has
considered the discretion to waive the period, where, there is no chance of
reconciliation and parties were already separated. In such situation it is paramount
responsibility to consider the basic issues, which has been stipulated in para 14 of
the said judgment as under:
"(i) How long parties have been married?
(ii) How long litigation is pending?
(iii) How long they have been staying apart?
(iv) Are there any other proceedings between the parties?
(v) Have the parties attended mediation/conciliation?
(vi) Have the parties arrived at genuine settlement which takes care of
alimony, custody of child or any other pending issues between the parties?"
2 0 . In R. Srinivas Kumar v. Shametha, MANU/SC/1382/2019 : (2019) SCC 409,
Hon'ble the Apex Court considering the facts and circumstances of the case on being
satisfied that marriage has irretrievably broken down has held that such marital
relationship can be dissolved which is already dead, with a view to do complete
justice between the parties. For ready reference, the relevant paragraphs 3.1 and 5.1
of the said judgment are quoted as under:
"3.1. In support of his alternative submission to dissolve the marriage on the
ground of irretrievable breakdown of marriage, learned Senior Advocate has
heavily relied upon the following decisions of this Court, Durga Prasanna
Tripathy v. Arundathi Tripathy, MANU/SC/0500/2005 : (2005) 7 SCC 353;
Naveen Kohli v. Neelu Kohli, MANU/SC/1387/2006 : (2006) 4 SCC 558;
Sanghamitra Ghosh v. Kajal Kumar Ghosh, MANU/SC/5143/2006 : (2007) 2
SCC 220; Samar Ghosh v. Jaya Ghosh, MANU/SC/1386/2007 : (2007) 4 SCC
511; K. Srinivas Rao v. D.A. Deepa, MANU/SC/0180/2013 : (2013) 5 SCC
226; and Sukhendu Das v. Rita Mukherjee, MANU/SC/1275/2017 : (2017) 9
SCC 632.....
5.1. At the outset, it is required to be noted and does not seem to be in
dispute that since last 22 years both the appellate-husband and the
respondent-wife are residing separately. It also appears that all efforts to
continue the marriage have failed and there is no possibility of re-union
because of the strained relations between the parties. Thus, it appears that
marriage between the appellant-husband and the respondent-wife has
irretrievably broken down. In the case of Hitesh Bhatnagar (supra), it is
noted by this Court that Courts can dissolve a marriage as irretrievably
broken down only when it is impossible to save the marriage and all efforts
are made in that regard and when the Court is convinced beyond any doubt
that there is actually no chance of the marriage surviving and it is broken
beyond repair......."

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 2 1 . In Archi Agarwal v. Principal Judge, Family Court, Lucknow,
MANU/UP/1477/2019 : 2019 (134) ALR 488, Hon'ble the Apex Court while
considering the exemption of statutory period has held that such application can be
allowed in cases of "exceptional hardship" or of "exceptional depravity" as
continuance of litigation would cause mental and physical harassment to both the
parties.
22. Subject to the provisions of the Act a petition for dissolution of marriage by a
decree of divorce may be presented to the Principal Judge, Family Court by both the
parties together 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
been mutually agreed that the marriage should be dissolved. For ready reference
Section 13B of the Act is quoted as under:
"13B. 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 presented
to the district Court by both the parties to a marriage together, whether such
marriage was solemnised before or after the commencement of the Marriage
Laws (Amendment) Act, 1976 (68 of 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
marriage should be dissolved.
(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 solemnised 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."
23. Section 13-B itself provides for a cooling period of six months on the first motion
being moved, in the event the parties changed their minds during the said period.
Accordingly, after the initial motion and the presentation of the petition for mutual
divorce, the parties are required to wait for a period of six months before the second
motion can be moved, and at that point of time, if the parties have made up their
minds that they would be unable to live together, the Court, after making such
inquiry as it may consider fit, grant a decree of divorce declaring the marriage to be
dissolved with effect from the date of the decree.
24. It is also urged that the other conditions contained in Section 13-B(1) of the Act
has also been satisfied as the parties have been living separately for more than a year
and had mutually agreed that the marriage should be dissolved. It was urged that
except for the formality of not having made an application under Section 13-B, the
other criteria has been duly fulfilled and having regard to the language of Section 13-
B, a decree of dissolution of the marriage by way of mutual divorce should not be
denied to the parties, since one month out of waiting period of six months
contemplated under Section 13B had already been completed.
25. Hon'ble the Apex Court in Anil Kumar Jain v. Maya Jain, MANU/SC/1593/2009 :
(2009) 10 SCC 415, had invoked its power under Article 142 of the Constitution of
India in the best interest of the parties as it had been urged that technicality should

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 be tempered by pragmatism, if substantive justice was to be done to the parties.
26. It is undoubtedly true that the Legislature had in its wisdom stipulated a cooling
period of six months from the date of filing of a petition for mutual divorce till such
divorce is actually granted, with the intention that it would save the institution of
marriage. In such situation the intention of the Legislature cannot be faulted with, but
there may be occasions when in order to do complete justice to the parties it
becomes necessary for this Court to invoke its discretion in an irreconcilable
situation.
2 7 . Hon'ble the Apex Court in Devinder Singh Narula v. Meenakshi Nangia,
MANU/SC/0665/2012 : (2012) 8 SCC 580, has considered the cooling off period of
six months prior to filing of second motion under Section 13-B in the backdrop that
the parties living separately for more than one year, no formal ties of marriage
between the parties and the marriage is subsisting by a tenuous thread on account of
the statutory cooling off period, out of which four months have already expired. The
Supreme Court observed that there is no reason to continue the agony of the parties
for another two months, when it is not possible for the parties to live together and to
discharge their marital obligations towards each other for more than one year. The
relevant portion of the said judgment is quoted as under:
"10. As will appear in the averments made in this appeal, the appellant filed
a petition under Section 12 of the Hindu Marriage Act on 1.6.2011 on the
ground that the marriage contracted on 26.3.2011, was a nullity; that the
parties had been living separately since their marriage and have not
cohabitated with each other since 1.6.2011 and in future also they could
never live together under one roof. According to the parties, they are residing
separately from each other for the last one year and the respondent was
presently working overseas in Canada. It is with such object in mind that
during the pendency of the proceedings under Section 12 of the Act the
parties agreed to mediation and during mediation the parties agreed to
dissolve their marriage by filing a petition under Section 13-B of the above
Act for grant of divorce by mutual consent.
1 1 . In the proceedings before the Mediator, the parties agreed to move
appropriate petitions under Section 13-B(1) and 13-B(2) of the Act. A report
was submitted by the Mediator of the Mediation Centre of the Tis Hazari
Courts to the Court in the pending HMA No. 239 of 2011. It is pursuant to
such agreement during the mediation proceedings that an application was
filed by the parties in the aforesaid pending HMA on 15.12.2011 indicating
that they had settled the matter through the mediation centre and that they
would be filing a petition for divorce by mutual consent on or before
15.4.2012. On the strength of the said petition, the HMA proceedings were
disposed of as withdrawn. Subsequently, on 13.4.2012 the parties filed a
joint petition under Section 13-B of the Act on which the order came to be
passed by the learned Additional District Judge-01, West Delhi, fixing the
date for the second motion on 15.10.2012.
12. It is quite clear from the materials on record that although the marriage
between the parties was solemnized on 26.3.2011, within 3 months of the
marriage the petitioner filed a petition under Section 12 of the Hindu
Marriage Act, 1955, for a decree of nullity of the marriage. Thereafter, they
have not been able to live together and lived separately for more than 1 year.

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 In effect, there appears to be no marital ties between the parties at all. It is
only the provisions of Section 13-B(2) of the aforesaid Act which are keeping
the formal ties of marriage between the parties subsisting in name only. At
least the condition indicated in Section 13-B for grant of a decree of
dissolution of marriage by the mutual consent is present in the instant case.
It is only on account of the statutory cooling off period of six months that the
parties have to wait for a decree of dissolution of marriage to be passed.
13. In the above circumstances, in our view, this is one of those cases where
we may invoke and exercise the powers vested in the Supreme Court under
Article 142 of the Constitution. The marriage is subsisting by a tenuous
thread on account of the statutory cooling off period, out of which four
months have already expired. When it has not been possible for the parties
to live together and to discharge their marital obligations towards each other
for more than one year, we see no reason to continue the agony of the
parties for another two months.
1 4 . We, accordingly, allow the appeal and also convert the pending
proceedings under Section 12 of the Hindu Marriage Act, 1955, before the
Additional District Judge-I, West Delhi, into one under Section 13-B of the
aforesaid Act and by invoking our powers under Article 142 of the
Constitution, we grant a decree of mutual divorce to the parties and direct
that the marriage between the parties shall stand dissolved by mutual
consent. The proceedings before the Additional District Judge-I, West Delhi,
being HMA No. 204 of 2012, is withdrawn to this Court on consent of the
parties and disposed of by this order......."
28. In K. Thiruvengadam v. Nil, MANU/TN/9976/2007 : (2007) 5 CTC 870, it was
held that though it is obligatory for Courts to make last minute efforts to save
marriage, where there is no possibility of re-union and when process of divorce by
mutual consent has been adopted it is open to Court to waive 6 months' period.
Section 13-B is only directory and not mandatory and if held to be mandatory it
would frustrate very liberalised concept of divorce by mutual consent.
29. In Miten v. Union of India, MANU/MH/0792/2008 : (2008) 5 Mah.L.J. 27, it was
observed that three ingredients had to be satisfied before the Court to a relief under
Section 13-B to the parties: (i) the parties had been living separately for a period of
more than a year, (ii) they had not been able to live together and (iii) that they have
mutually agreed to dissolve the marriage. Once these three statutory conditions are
satisfied then it gives jurisdiction to the Court to entertain a petition for divorce by
mutual consent. Purpose of introducing mutuality was not to dissolve the marriage
between the newly wed at the drop of the hat without any reason/jurisdiction.
30. The Court on the very first date, must satisfy itself that consent is not obtained
for divorce by force, fraud or undue influence and must reveal it in order of Court.
(vide: Sushama v. Pramod, MANU/MH/0150/2009 : (2009) 81 AIC 599 (Bom)).
31. In the present matter on the second day of hearing both the parties were present
and separately they made a categorical statement that within four days of their
solemnisation of marriage they departed and even the marriage has not been
consummated. Both are literate and decided with full conscious mind that they have
to be separated. We have also tried to get an impression whether the said statement
is with free will or not. They had no hesitation in responding that there is no force,

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 fraud or undue influence while reaching to such decision.
32. Considering the facts and circumstances of the case, we are of the view that it
will be open to the Court to exercise its discretion in the facts and circumstances of
each case where there is no possibility of parties resuming cohabitation and there are
chances of alternative rehabilitation. In the present matter the wife remained in her
matrimonial house only for four days and for more than one year they are living
separately. The marriage has never been consummated. They also make statement
before the Court that they do not want to live together and there is no chance of
reconciliation and the waiting period will only prolong their agony. They have made
statement that they have better future prospects if divorce is allowed.
3 3 . In view of the above and keeping in mind the legal position, we are of the
considered opinion that learned Incharge Principal Judge, Family Court rejected the
application 17/C without considering the facts of the case as well as law laid down by
the Apex Court, therefore, the order impugned is set aside. The application 17/C is
allowed. The present first appeal allowed accordingly. Learned Principal Judge,
Family Court is directed to decide the Original Suit No. 592 of 2020 expeditiously or
preferably within 7 days after producing the computerized copy of this judgment.
34. The party shall file computer generated copy of such order downloaded from the
official website of High Court Allahabad, self attested by the appellant/respondent
alongwith a self attested identity proof of the said person (preferably Aadhar Card)
mentioning the mobile number to which the said Aadhar Card is linked.
3 5 . The concerned Court/Authority/Official shall verify the authenticity of such
computerized copy of the order from the official website of High Court Allahabad and
shall make a declaration of such verification in writing.
© Manupatra Information Solutions Pvt. Ltd.

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