MANJU KOHLI Vs. DESH DEEPAK KOHLI

JUDGEMENT

(1.) IN matrimonial proceedings between the parties for seeking divorce by the wife under Section 13 of the Hindu Marriage Act which was filed on 14. 7. 1995, on 9. 2. 1996aan application was filed under joint signatures of the spouses through their Counsel for obtaining a divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. The spouses sought a decree of divorce under Section 13-B of the Act on the date of presentation of the petition. The Matrimonial Court by order dated 12. 2. 1990, however, held that the decree sought of divorce on mutual consent cannot be passed before expiry of six months period from me date of joint filing of the petition. The Court held that the provision of Sub-section (2) of the Section 13-B of the Act require the Court to direct the parties to wait for six months after filing of the petition based on mutual consent.

(2.) THE learned Counsel appearing for the wife raised two contentions. Firstly it is contended that the period of six months can be reckoned by the Court from 14. 7. 1995 when the divorce petition was filed under Section 13 of the Act and not from 9. 2. 1996 when a joint petition under signatures of the spouses were filed for decree based on mutual consent under Section 13-B of the Act. It is submitted that there were facts brought on record to show that the parties were lying separately for a period of more than one year and their reunion was impossible for the reasons mentioned in the main petition as also in the application. It is subjected that the period of 6 months fixed under Sub-section (2) of Section 13-B of the Act is only 'directory. Reliance is placed on decision of Andhra Pradesh High Court in K. Omprakash v. K. Nalini, AIR 1986 AP 167, and decision of the learned Single Judge of this Court in Ramesh Kumar Pandey v. Gaurabai, I (1982) DMC 216. Reliance is also placed on another Single Bench decision in Dinesh Chandra Goyal v. Sitabai Goyal, II (1987) DMC 452.

(3.) AT the outset it may be stated that the decision in the case the Ramesh Kumar Pandey (supra) makes no discussion as to whether Section 13-B of the Act is directory or mandatory. That case is also distinguishable because there the application for mutual divorce was filed in appeal and therefore, the Court did not insist on waiting for a period of six months and passed decree of divorce under Section 13-B of the Act.