SWARIT VERMA Vs. KANCHAN VERMA

JUDGEMENT

(1.) This petition under Article 227 of Constitution of India has been filed by the petitioner-husband against the impugned order dtd. 29/7/2021, passed by the Court of Principal Judge, Family Court, Jabalpur in Matrimonial Case No.728/2021, whereby an application jointly filed by the petitioner-husba nd and respondent-wife for urgent hearing in second motion of the application filed under Sec. 13-B r/w Sec. 25 of the Hindu Marriage Act 1955, for divorce on mutual consent, in order to the cooling-off period of six months has been rejected.

(2.) Factual matrix giving rise to this petition is that marriage between the parties took place on 13/12/2006 at Jabalpur. Out of their wedlock, they were blessed with a child namely Tanishq on 26/6/2012. Since 15/9/2019, parties are living separately. Disputes between them gave rise to civil and criminal proceedings. Finally on 28/7/2021 a settlement was arrived at to resolve all the disputes and seek divorce by mutual consent. The respondent-wife is to be given permanent alimony of Rs.5,00,000.00. Custody of child is to be with the petitioner-husband. Accordingly, on 28/7/2021 an application under Sec. 13-B r/w Sec. 25 of Hindu Marriage Act 1955 was filed before the Court of Principle Judge, Family Court, Jabalpur, which was registered as Matrimonial Case No.728/2021. In support of their application parties presented their affidavits under Order 18 Rule 4 of CPC. The petitioner-husband handed over a cheque for an amount of Rs.2,00,000.00 to the respondent-wife towards part payment of permanent alimony. On the same day parties filed an application for urgent hearing in second motion of the application, filed under Sec. 13-B r/w Sec. 25 of Hindu Marriage Act 1955, in order to waive the statutory period of six months on the ground that relation between the parties have broken down completely and the fact that prolong a litigation is only causing agony to the petitioner and respondent.

(3.) The learned Family Court vide impugned order dtd. 29/7/2021, dismissed the application for urgent hearing in second motion holding that except Hon'ble the Apex Court no Court has power to waive cooling-off period stipulated in Sec. 13-B(2) of Hindu Marriage Act, 1955. Learned Family Court while passing the impugned order observed that Hon'ble the Apex Court in the case of Anil Kumar Jain Vs. Maya Jain (2009) 10 SCC 415, has specifically held that Civil Court and the High Court could not exercise the power contrary to the statutory provisions and only the Apex Court under Article 142 of the Constitution of India can exercise such power in the interest of justice. Learned Family Court further observed that in the case of Manish Goyal Vs. Rohini Goyal, (2010) 4 SCC 393, it has also been held by Hon'ble the Apex Court that jurisdiction under Article 142 of Constitution of India could not be used to waive statutory period of six months for filing the second motion under Sec. 13-B of Hindu Marriage Act, as doing so will be passing an order in contravention of statutory provisions. Learned Family Court further observed that since the above findings of Hon'ble the Apex Court in both the above cited cases have not been over turned by a larger Bench, therefore, this Court has no jurisdiction to waive cooling-off period under Sec. 13-B of Hindu Marriage Act.