RAJESH LAKHOTIA Vs. SMITA LAKHOTIA

JUDGEMENT

(1.) This appeal was preferred against the judgment and order dated 30th July, 1999, passed by the learned Judge, Family Court, Calcutta, in Matrimonial Petition No. 5 of 1996, dismissing the appellants' petition under section 13 of the Hindu Marriage Act, 1955 for dissolution of his marriage with the respondent. While the appeal was pending hearing, the parties jointly filed an application under section 13B of the aforesaid Act praying, inter alia, that the appeal be converted into a petition for divorce by mutual consent under section 13B of the above Act and that the waiting period of six months mentioned in sub-section (2) thereof be waived and a decree of divorce be immediately passed dissolving the marriage between the parties after taking on record the memorandum of compromise dated 15th March, 2001, jointly executed by them.

(2.) Appearing for the appellant, Mr. Bhaskar Sen submitted that the consistent view of the different High Courts and the Hon'ble Supreme Court was that a proceeding under section 13 of the Hindu Marriage Act, 1955, could be converted into a proceeding under section 13B of the said Act at the appellate stage and even the waiting period of six months after filing of the petition for a decree of divorce by mutual consent mentioned in sub-section (2) of section 13B was not mandatory but only directory and could, therefore, be waived.

(3.) Mr. Sen urged that there could, therefore, be no bar to a decree for divorce being immediately granted under section 13B of the Hindu Marriage Act, 1955, on the basis of the petition jointly filed by the parties without waiting for the period of six months mentioned in section 13B(2) of the said Act.