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Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.19446 of 2025 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Aliva Das ....... Petitioner -Versus- Biswajit Das ....... Opposite Party Advocate for the parties For Petitioner : Mr. S.P. Barik, Advocate For Opposite Party : None ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing & Judgment: 07.08.2025 --------------------------------------------------------------------------------- S.K. Mishra, J. 1. The issue involved in the present writ petition is regarding legality of order dated 24.04.2025 as at Annexure-3, passed by the learned Judge, Family Court, W.P.(C) No.19446 of 2025 Page 1 of 9 Cuttack in C.P. No.632 of 2023, vide which the proceeding initiated under Section 28(2) of the Special Marriage Act, 1954 for divorce by mutual consent was dropped by the learned Court below on technical ground that the same is pending for more than 18 months. Since the present Opposite Party is also one of the Petitioners in C.P. No.632 of 2023, the matter is taken up for hearing and disposal at the stage of admission without noticing the Opposite Party- Husband. 2.
Legal Reasoning
Heard Mr. Barik, learned Counsel for the Petitioner. 3. Admittedly, C.P. No.632 of 2023 was preferred by the Petitioner-wife so also Opposite Party-husband by filing a joint application under Section 28(2) of the Special Marriage Act, 1954 for passing a decree to dissolve the marriage between them. 4. As is revealed from the impugned order dated 24.04.2025, the learned Court below dropped the said proceeding referring to Section 13(B)(2) of the Hindu Marriage Act, 1955 on the ground that 18 months have already elapsed. It is further revealed from the said order W.P.(C) No.19446 of 2025 Page 2 of 9 dated 24.04.2025 that on the said date, the Petitioner No.1, who is the present writ petitioner, was present, whereas the Petitioner No.2(present Opposite Party) remained absent. However, the learned Counsel for the Petitioner No.2 moved an application on the said date for time on the ground of his ailment. The said petition stood rejected and the proceeding in C.P. No.632 of 2023 was dropped on presumption that the Petitioners are not interested to proceed with the said case, with further observation that 18 months have already elapsed in between. 5. Learned Counsel for the Petitioner submits, though joint application for divorce by mutual consent was moved under Section 28 (2) of the Special Marriage, Act, 1954, but the learned Court below, referring to Section 13(B)(2) of the Hindu Marriage Act, 1955, dropped the said proceeding on the ground that 18 months have already elapsed in the meantime. 6. Relying on the judgment of this Court in 2004 (II) OLR 172 (Debmeet Patro Vs. Family Court, Cuttack and another), learned Counsel for the Petitioner further submits, the provisions enshrined under Section 28(2) of W.P.(C) No.19446 of 2025 Page 3 of 9 the Special Marriage Act, 1954, which is pari materia to Section 13(B)(2) of the Hindu Marriage Act, 1955, is directory, not mandatory. The learned Court below should not have dropped C.P. No.632 of 2023 despite presence of the Petitioner-wife and moving an application for time by the Petitioner No.2-husband on medical ground. Accordingly, he prays for quashing of the said order dated 24.04.2025 and direct the Court below to proceed further on merit and conclude the said proceeding at the earliest. 7. Though it has not been pleaded so, a query being made, learned Counsel for the Petitioner further submits, in the office note in C.P. No.632 of 2023, some defects were pointed out by the office of the learned Court below and the parties were directed to remove the defects. Because of some unavoidable circumstances, the defects could not be removed and the matter got lingered beyond 18 months, as prescribed under Section 28 (2) of the Special Marriage Act, 1954. 8. In view of such submission made by learned Counsel for the Petitioner, on examination of the provisions under Section 13(B)(2) of the Hindu Marriage Act, 1955 vis- W.P.(C) No.19446 of 2025 Page 4 of 9 (cid:224)-vis Section 28 (2) of the Special Marriage Act, 1954, it is revealed that both the said provisions are similar. The Court, before whom such an application is moved for divorce by mutual consent, has to deal with such application not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date, if the said petition is not withdrawn during the said period. 9. For ready reference, Section 28 of the Special Marriage Act, 1954 is reproduced below. “28. Divorce by mutual consent.- (1) XXX XXX XXX (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the district Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree. (Emphasis Supplied) W.P.(C) No.19446 of 2025 Page 5 of 9 10. Section 28 (1) of the Special Marriage Act, 1954 read with Section 28 (2) of the said Act envisages a total waiting period of one and half years from the date of separation to move the motion for a decree of divorce. The said period under Section 28(2) of the Act, 1954 was laid down to enable the parties to have a rethink so that the Court grants divorce by mutual consent only if there is no chance for reconciliation. As per the provisions enshrined under Section 28 of the Act, 1954, if such petition is not withdrawn within the statutory period, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, has to pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. 11. Law is well settled that a judgment is a precedent for the issue of law that is raised and decided. A judgment is not to be read in the manner of a statute and construed with pedantic rigidity. Law is also well settled that the provisions enshrined under Section 28 (2) of the Special Marriage Act, 1954 is not mandatory but directory and that it would be open to the Court to exercise its W.P.(C) No.19446 of 2025 Page 6 of 9 discretion to waive the requirement of Section 28 (2), having regard to the facts and circumstances of the case, if there is no possibility of reconciliation between the spouses, and the waiting period would serve no purpose except to prolong their agony. Law is further well settled that the Courts must not encourage matrimonial litigation, as prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-technical view can be counterproductive as pendency of matrimonial proceeding itself causes pain, suffering and harassment and, consequently, it is the duty of the Court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end. In this regard, the Courts only have to enquire and ensure that the settlement between the parties is achieved without pressure, force, coercion, fraud, misrepresentation, or undue influence, and that the consent is indeed sought by free will and choice and the autonomy of the parties is not compromised. W.P.(C) No.19446 of 2025 Page 7 of 9 12. Admittedly, the statutory cooling-off period of six months that the parties have to wait for a decree of dissolution of marriage has passed since long. That apart, the proceeding was dropped by the Court below on the ground of expiry of maximum period of eighteen months. Admittedly, during the said interregnum period of six months to eighteen months, the said application moved under Section 28(2) of the Act, 1954 was never withdrawn by any of the parties to the said proceeding. Rather, the Petitioner No.2-husband moved an application for time on 24.04.2025, which stood rejected and learned Court below presumed vide the impugned order that because of delay on the part of the Petitioners to expedite hearing of the C.P. No.632 of 2023, the parties are not interested to pursue the said application moved under Section 28 (2) of the Act, 1954. Hence, to secure the ends of justice, this Court is of the view that the impugned order dated 24.04.2025 passed in C.P. No.632 of 2023 deserves interference. 13. Accordingly, the impugned
Decision
order dated 24.04.2025 passed in C.P. No.632 of 2023, as at Annexure- 3, is set aside. C.P. No.632 of 2023 is restored to its file. W.P.(C) No.19446 of 2025 Page 8 of 9 The Petitioner and the Opposite Party, who is also the Petitioner No.2 in C.P. No.632 of 2023, are permitted to remove defects, if any, within two weeks hence. On removal of defects, the Judge, Family Court, Cuttack shall proceed further in C.P. No.632 of 2023 in accordance with law and try to conclude the said proceeding at the earliest, preferably within two months from the date of removal of defects. 14. With the said observation and direction, the writ petition stands allowed and disposed of. 15. Urgent certified copy of this judgment be granted as per rules. …….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack. Dated, the 7th August, 2025/Kanhu Signature Not Verified Digitally Signed Signed by: KANHU BEHERA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 13-Aug-2025 19:25:46 W.P.(C) No.19446 of 2025 Page 9 of 9