K SANJAY Vs. PRINCIPAL JUDGE FAMILY COURT

JUDGEMENT

(1.) PRINCIPAL Judge, Family Court, Bangalore has by an order dated 19th of October, 2000 declined to cut short the six months period prescribed by Section 13 (B) (2) of the Hindu Marriage act and take up the petition for divorce by mutual consent for immediate orders. Aggrieved, the petitioners have filed the present writ petition seeking a mandamus directing the Court below to dispose of the matter expeditiously.

(2.) THE petitioners are husband and wife who got married to each other in May, 1994. Having lived together till June, 1997, they appear to have separated on account of what they call 'temperamental incompatibility'. Two years later, they filed a petition before the Family Court at bangalore under Section 13 (B) of the Hindu Marriage Act seeking a decree for divorce by mutual consent. Sub-section (2) of Section 13 (B) provides that a motion for any such decree cannot be made earlier than six months from the date of the presentation of the petition. Undettered, the petitioners filed I. A. III before the Court below for immediate orders dispensing with the statutory requirement of six months waiting period. This request was considered, but declined by the Family Court in terms of the order referred to earlier. The Court was of the view that the petitioners had not made out a case for dispensing with the statutory period prescribed for the making of a motion for a decree.

(3.) LEARNED Counsel for the petitioners argued that the period prescribed by Section 13 (B) (2) for the making of the motion was hot mandatory and that the Family. Court could in appropriate cases permit a motion even in anticipation of the expiry of the statutory period. In support, he relied upon a decision of this Court in Smt. Roopa Reddy v. Prabhakar Reddy, AIR1994 Kant 12 , AIR1994 KAR 12 , II (1993 )DMC274 , ILR1993 kar 2212 , 1993 (2 )Karlj599. Reliance was also placed upon Dhanjit Vadra v. Smt. Beena vadra, AIR1990 Delhi 146 , 1990 (18 )DRJ199 , 1990 RLR167 , and K. Omprakash v. K. Nalini, AIR1986 AP 167. Support was borrowed by the learned Counsel from the decision of the Supreme Court in Smt. Sureshta Devi v. Omprakash, AIR1992 SC 1904 , 1991 (0 )MPLJ382 , 1991 (1)SCALE156 , for his contention that even if the couple was living under the same roof by force of circumstances, they need not be living as husband and wife and can, therefore, be treated as living separately. What was necessary in such situations was whether they had no desire to perform their marital obligations and had with that mental attitude been living separately for a period of one year immediately before the presentation of the petition. The judgment of the Apex court in Ashok Hurra v. Rupa Bipin Zaveri, AIR1997 SC 1266 , 1997 (2 )BLJR1524 , I (1997 )DMC491 SC , (1997 )2 GLR1308 , JT1997 (3 )SC 483 , (1997 )2 mlj61 (SC ), 1997 (2 )SCALE582 , (1997 )4 SCC226 , [1997 ]2 SCR875 , was called in aid to canvass that where the marriage between the parties had irretrievably broken, the Court could grant a decree without waiting for the six months period prescribed under Section 13 (B) (2 ). It was argued that the very fact that the parties had lived separately for the past two years signified an irretrievably break down of the wedlock making any effort at reunion between the two, futile and any hope of their coming together to spend their life nothing but an illusion. The Trial Court did not, according to the petitioners, appreciate the fact situation properly and erred in not taking up the matter for hearing and orders immediately. The fact that both the parties were highly educated and economically independent was, according to the learned Counsel, sufficient to show that decision to undo the wedlock was not a decision taken without due deliberation, care and caution.