GIRDHARI MAHESHWARI Vs. STATE

JUDGEMENT

(1.) THE facts in brief as pleaded by both the appellants are that both the appellants fell in love with each other and without the consent of their parent entered into wedlock on 26-8-2006 by following the rites of Arya Samaj. They could not live together for a single day (or night)as immediately after their marriage, the fact of marriage of the appellants came in knowledge of their parents and they did not accept this marriage. Because of above fact situation only, the appellants stated that the "appellants do not want to live together nor they want to continue this marriage relation because they contacted the marriage because of their lack of understanding". They further pleaded that not only they did not live together for a single day (or night)after marriage, but they did not meet with each other for a single moment after the marriage. With these averments, the appellants, husband and wife filed present petition before the Family Court under Section 138 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act of 1955) for obtaining mutual consent divorce decree. They pleaded that now both the parties the appellants, after obtaining the divorce decree by mutual consent, shall live separate from each other and both the appellants want to marry with other persons, the person who has been chosen or suggested by their parents or family members, therefore, both the appellants submitted that for this their family members also agreed (or appellants agreed to wishes of their parents ). With these pleadings, the appellants prayed that therefore, they are submitting this mutual consent divorce petition under Section 138 of the Act of 1955 and appellants prayed that their matrimonial relation may be dissolved from today itself by dispensation with the requirement of six months waiting period as provided under Section 13b of the act of 1955, which restricts the Court from passing the decree for divorce before period of six months from the date of presentation of petition under Section 13b of the Act of 1955.

(2.) IT appears from the copies of the divorce petition and application submitted for dispensing from waiting period of six months for divorce decree as required by sub-section (2) of Section 13b and the copies of the affidavit of parties and there relatives, which makes it clear that the appellants submitted this petition for divorce by mutual consent as they may have been advised to do so by legal experts who gone through the various judgments, which according to appellants indicates that the requisite period of six months before which decree for divorce even by mutual consent can be granted by the Court, has been considered and as per the learned counsel for the appellants, following the policy of liberalization in the matter of grant of divorce, the condition for waiting for six months after presentation of petition under Section 13b of the Act of 1955 for mutual consent divorce is held not mandatory and this period can be dispensed with by the Court. Therefore, the appellants who sought divorce forth with, on the same day, from the Court under Section 13b of the Act 1955 annexed an application for condonation of period of six months for grant of divorce and quoted the following authorities in support of their prayer for condoning the period of six months. These are the judgment referred in the application of the appellants dated 24th March, 2008, which was filed on the same date on which the divorce petition was filed under Section 13b of the act of 1955. 1. 1995 (2) CC 164 (Pandh) Lalit Kumar @ manga v. Sushma Sharma. 2. 2008 (l)Femi- Juris CC 134 AIR 2008 mad 76 (Mad), K. Thiruvengadam and Anr. v. Nil. 3. AIR 1999 A. P. 91. In Re: Grandhi venkata Chitti Abbai and Anr. 4. (1998) II DMC 694 (DB) Kerala High court, Manoja Kumari v. Bhasi. 5. 1997 (l) CCC 382 (Pandh), Smt. Krishna kumari v. Ashwani Kumar.

(3.) THE appellants submitted an affidavit of Smt. Kamla Devi - the mother of the appellant No. 2 (wife) and mother-in-law of the appellant No. 1 (husband), who reiterated in her affidavit what appellants stated In their divorce petition and in affidavits and she submitted that she (mother of the appellant No. 2) fixed the marriage of the appellant no. 2 on 18th April, 2008 and she already got the invitation card printed and also distributed the invitation card, therefore, she prayed that the divorce may be granted on the same day obviously by dispensing with the requirement of waiting period of two months under Section 13b of the act of 1955. In place of any of the parent of the appellant No. 1, one Bhagwan Birla, the relative of the appellant No. 1 submitted a brief affidavit stating therein that appellant no. 11 contacted marriage with appellant no. 2 as per the procedure (rites) of Arya samaj on 26-8-2006 and their living together is not possible and, therefore, decree for divorce may be granted. A joint motion application as required by sub-section (2) of Section 13b of the Act of 1955 was also submitted along with the main petition for divorce under Section 13b of the Act of 1955 by both the parties. The trial Court vide order dated 15th April, 2008 after referring the judgments relied upon by the appellants, which are referred in their application for condonation of delay of six months period before passing the decree for divorce, rejected the appellants application vide impugned order dated 15-4-2008, hence, this appeal has been preferred by the appellants.