LATHA C @ ASHA C v. NIL

CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI - 2 - NC: 2024:KHC:42733 WP No. 25656 of 2024 CAV ORDER The present writ petition is filed seeking the following prayer: "PRAYER WHEREFORE, it is most respectfully prayed that, this Hon'ble Court be pleased to issue a (i) Writ of certiorari or any other appropriate writ, order or direction, quashing the impugned order passed by the learned Senior Civil Judge and JMFC, Channapatna, Ramanagara in M.C.No.35/2024 dated 10.09.2024 found at Annexure-D in so far as adjourning the matter and (ii) Writ of mandamus directing the learned Senior Civil Judge and JMFC, Channapatna, Ramanagara to pass orders on I.A.No.2 found at Annexure-B and pass a decree of mutual consent divorce as sought for by the parties dissolving the marriage solemnized between the Petitioner and her husband on 20.09.2018 at the earliest, allow this writ petition with costs and grant such other reliefs as this Hon'ble Court deems fit to grant in the circumstances of the case, in the interest of justice and equity."

2. The petitioner herein is the wife. The marriage between the petitioner and her husband was solemnized on

20.09.2018. It is the case that out of the wedlock, they are blessed with a boy. Due to the incompatibility between the petitioner and her husband, they could not reconcile their differences and they have been living separately since - 3 - NC: 2024:KHC:42733 WP No. 25656 of 2024 December 2018. In spite of the intervention of family and friends, they are not able to reconcile and mutually agreed and consented that the marriage having broken down and there being no chance of reconciliation, there marriage should be dissolved by a decree of divorce. It is agreed that the husband would pay a sum of Rs.7,50,000/- as permanent alimony to the petitioner and that she is entitled for the custody of their son. The husband has also agreed that he will not have any claim over the child and also is not claiming visitation rights. The petitioner and her husband have filed a petition M.C.No.35/2024 on the file of the Senior Civil Judge and JMFC, Channapatna, under section 13-B of the Hindu Marriage Act, seeking a decree of divorce by mutual consent. After the marriage, the petitioner and her husband have lived together only for three months. Since 2018, the petitioner has been living in her parental house and they have been living separately for more than five years, the statutory period of 6 months specified in Section 13B(2) in addition to the statutory period of 1 year specified under Section 13B(1) is already completed. Therefore, they filed an application in I.A.No.2 under section 13-B(2) of the Hindu Marriage Act, 1955 seeking waiver of the waiting period of 6 months. - 4 - NC: 2024:KHC:42733 WP No. 25656 of 2024

3. The M.C.No.35/2024 was listed before the trial Court on 05.06.2024. On that day, the matter was referred to the mediation and was ordered listing the matter on

10.09.2024. Both the parties have appeared before the Mediator, but they could not reconcile their differences. Hence, they have filed an application under Section 151 of the Code of Civil Procedure seeking advancement of the case from

10.09.2024 to 11.07.2024. The learned Judge without considering the fact that the parties have consented for divorce by mutual consent and have settled the matter and also not considering the fact that the husband is ready to settle the matter has passed an order on 11.07.2024 directing the matter to be called on the hearing date i.e., 10.09.2024. On

10.09.2024, the parties were again present before the trial Court. Despite bringing to the notice of the Court that the parties have been living separately since December 2018 and that the statutory period of six months specified in Section 13- B(2) and the statutory period of one year and section 13-B(1) is already over and the parties have decided to obtain the decree of divorce by mutual consent with agreed terms with respect to the permanent alimony and the custody of the child, the learned Judge without considering any of these aspects had - 5 - NC: 2024:KHC:42733 WP No. 25656 of 2024 passed the impugned order on 10.09.2024. It is the case that the Court without considering the principles laid down by the Hon'ble Supreme Court in the judgment in the case of Amardeep Singh Vs. Harveen Kaur1 and without assigning any reasons and without passing any orders on I.A.No.2 had passed the impugned order.

4. The trial Court in the impugned order has observed that both parties are present, both counsels present, for reconciliation, call on 14.11.2024.

5. Learned counsel appearing for the petitioner submits that the order passed by the trial Court on 10.09.2024 is illegal, arbitrary and the same is unsustainable. When the parties are living separately from six years, the trial Court has failed to consider and the Court was adjourning the matter. It is submitted that by waiving the period of six months, the Court ought to have passed an order.

6. Having heard the learned counsel for the petitioner, perused the entire material on record. The Hon’ble Apex Court in Amardeep Singh’s case has held that while considering the application courts have to see how long they have been staying 1 (2017) 8 SCC 746 - 6 - NC: 2024:KHC:42733 WP No. 25656 of 2024 separate, are there any other proceedings between the parties, have the parties attended mediation/conciliation, have the parties arrived at a genuine settlement in case of alimony and custody of child or any other issues are pending between them. In this case, the parties are staying separately from the last 6 years. The court had referred them to mediation and directed the matter to be called on 10.09.2024.

7. In the light of the above discussion, this Court is passing the following: ORDER i. The Family Court is directed to consider their application of the petitioner filed under Section 13B(2) of the Hindu Marriage Act, 1955, by waiving of the period of six months if the mediation is not successful. ii. Accordingly, the writ petition is disposed off. iii. All I.As. in this writ petition shall stand closed. Sd/- JUSTICE LALITHA KANNEGANTI MEG LIST NO.: 2 SL NO.: 15