NAGENDRA SIKARWAR Vs. GIRJA DHAKRE

JUDGEMENT

(1.) The instant First Appeal under Section 19 of the Family Court Act 1984 assails the interlocutory order dated 22.10.2016 whereby while admitting petition under Section 13-B of Hindu Marriage Act (in short " HMA") seeking divorce by mutual consent preferred jointly by rival parties, the Family Court has rejected the prayer for waving the cooling off period of six months by relying upon the decision of the Apex Court in the case of Anil Kumar Jain v. Maya Jain [(2009) 10 SCC 415].

(2.) Learned counsel for the appellant relying upon the Division Bench decision of this Court in the case of Preety v. Arun Kumar [(2016) 4 MPLJ 79] submits that when marriage breaks down irretrievably then the appellate court by exercising discretionary power to do complete justice can very well waive the cooling off period of six months and grant divorce by mutual consent without waiting for six months to expire.

(3.) True it is that the Coordinate Bench of this court has taken a view which favours the case of the petitioner but the said view appears to be contrary to the law laid down by the Apex Court in the case of Anil Kumar Jain (supra) which has subsequently been followed in case of Soni Kumari v. Deepak Kumar [(2015) SCC Online SC 1503] categorically holding that neither the Family Court nor the High Court even has power to waive the cooling off period of six months statutorily provided under sub-clause (2) of Section 13-B of HMA in mandatory terms. The Apex Court can very well exercise its extraordinary power under Article 142 of the Constitution for doing complete justice, but no such power is vested in the High Court even while exercising appellate jurisdiction.