BHARTI ARYA Vs. RAKESH ARYA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dtd. 20/1/2021 passed by Family Court (Link) Gwalior in case No.125A/2020 (HMA), by which the application filed by the petitioner under Sec. 13-B (2) of the Hindu Marriage Act has been rejected.

(2.) It is submitted by the counsel for the petitioner that the petitioner and the respondent were married to each other on 21/4/2007 and because of their mutual differences, they are residing separately for the last three years and accordingly on 11/8/2020 they filed an application under Sec. 13-B of the Hindu Marriage Act for grant of divorce by mutual consent. On 18/12/2020 affidavits under Order 18 Rule 4 CPC were filed. On the same day, a prayer was made by the parties that their application may be decided finally, however, the trial court by ignoring their prayer, has adjourned the matter for 30/6/2021 for recording of their second statements. It is submitted by the counsel for the petitioner that the provision of Sec. 13-B (2) of the Hindu Marriage Act is not mandatory, but it is directory in nature and, therefore, the court below should not have adjourned the matter for six months and should have granted the decree of mutual consent. It is further submitted that since the application for grant of mutual consent was filed on 11/8/2020, therefore also, six months have already passed. Heard learned counsel for the petitioner.

(3.) The Supreme Court in the case of Amardeep Singh Vs. Harveen Kaur reported in (2017) 8 SCC 746 has held as under:- "19. 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 Sec. 13B(2), it can do so after considering the following: