KANTILAL MOHANBHAI BHAGAT Vs. PRATIMABEN KANTILAL BHAGAT

JUDGEMENT

(1.) APPELLANT who is the original petitioner husband has filed this appeal under Section 28 of the Hindu Marriage Act, 1955 (for be referred to as 'the Act') read with Section 96 of the Code of Civil Procedure challenging the judgment and decree dated 28.2.1994 passed by the learned City Civil Judge, Court No. 8, Ahmedabad in HMP No. 291/89, whereby the learned Judge dismissed me petition of the appellant -husband for divorce which was filed under Section 13 of the Act.

(2.) THE appeal was admitted on 11.10.1995.

(3.) AFTER signing of the terms of settlement. Misc. Civil Application No. 294/97 was filed to convert the main petition for divorce into petition under Section 13B of the Act. The said MCA was allowed and the petition for divorce filed under Section 13 of the Act was permitted to be converted into petition for divorce by mutual consent as provided under Section 13B of the Act. The appellant and the respondent have filed their affidavits today, i.e. 11.2.1997, expressing their consent that their marriage be dissolved as reunion is not possible. They have also prayed in their affidavits that the statutory period as prescribed under Section 13B(2) of the Act be waived as their marriage has completely broken and there are no chances for reunion. As per the principle laid down in Dr. Dhiren Harilal Garasia v. Mansu @ Mina Chamanlal Gangi , the provisions under Section 13B(2) are in the nature of directory and not mandatory, and in a fit case, decree for divorce by mutual consent can be granted even though the sub -section is not strictly complied with. Even after the affidavits are filed/this Court ascertained the wishes of the appellant and the respondent, and they have stated that as there are no chances for reunion, their marriage may be dissolved by passing a decree under Section 13B of the Act. Taking into consideration the facts and circumstances of me case, and the fact that the appellant and the respondent are living separately since last 13 years, I thought it proper to waive the statutory period as prescribed under Section 13B(2) of me Act.