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Mutual Divorce Petition waiting 6 months not mandatory

Bombay high court division bench has passed landmark judgment enabling the contesting parties to claim the waiver of compulsory wait period of six months in extrordinary exceptional circumstances.Compulsory Waiting of six months is not mandatory in exceptional extraordinary circumstances as per bombay high court judgment.In the mutual consent divorce petition appellants have filed joint petition u/s 13-B of Hindu Marriage Act, 1955,
before the Family Court, Mumbai, which was registered as Petition No. F – 1919/2013. Besides filing the joint petition for divorce by mutual consent, contesting parties have also made application to waive the six months’ waiting period in passing the decree by assigning the reasons in detail for waiver of such statutory period. However, the learned Judge, Family Court, Bombay, vide order dated 5/10/2013 rejected the petition. Being aggrieved by said order, the appellants have approached bombay high court by way of this appeal.
The court had observed that; The statutory period of six months provided u/s 13-B(2) has been provided with a specific intent that the possibility of last minute reconciliation can be worked out in such matters. In dispensation of justice, the courts are expected to do the justice between the parties by overcoming the technical difficulties, coming in the way of imparting justice. The waiver of statutory period of six months though not specifically provided but same can be read in provisions as the main object of provision is to libralize divorce. The provision cannot be read in rigidity so as to make the provision ineffective and meaningless. The period of six months is nothing but period provided with a view to enable parties to reconsider their decision and instead of dissolving their marriage resolve their differences. It was never the intention of the legislature that such period is to be observed irrespective of the facts of the case wherein the marriage has been irretrievably broken and there are no chances of reconciliation between the parties or it would be futile exercise to wait for six months.
11 While legislating the law, it is not possible for legislature to foresee all possible circumstances, which may arise in future. In order to overcome such situation in Code of Criminal Procedure as well as Code of Civil Procedure, the inherent powers have been conferred upon the court of law by making specific provision to that effect in both the enactments. Section 151 of Civil Procedure Code provides inherent powers in court to overcome the situation which was not visualized by the legislature. Section 151 provides inherent powers in courts to make such orders as may be necessary to meet the ends of justice or to prevent abuse of process of law. Thus in any peculiar or extraordinary situation where the procedural law are inadequate to address such problem, the recourse of inherent powers u/s 151 of the Civil Procedure Code can always be resorted by courts of law.”

“no fruitful purpose could be achieved by forcing the parties to wait for six months in passing of decree”
“While enacting the provisions of Section 13-B, the legislature never contemplated such situation. In such situation court may take recourse to its inherent powers u/s 151 of the Civil Procedure Code to meet the ends of justice”

This judgement is landmark judgment and it has literally paved way out for many litigant to contest the urgency and extraordinary situations, special circumstances demanding speedy and quick justice.

Citation: 2013 LawSuit(Bom) 2167
This is not legal opinion.


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