Smt. Rashmi Sharma v. Mridul Dwivedi

rejected on 19.12.2024, the instant first appeal has been filed.

Learned counsel for the appellant has submitted that when the parties were agreeing for an amicable dissolution of marriage, then the Court could definitely not have waited for the six months period to pass off. Learned counsel for the appellant specifically relied upon paragraph No. 18 and 19 of the judgment in Amardeep Singh's case (supra) to bolster his case.

The paragraphs 18 and 19 of the judgment of the Amardeep Singh's case are reproduced as under: "18. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The court has to have the regard to the context, the subject-matter and the object of the provision. This principle, as formulated in Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn., 2004), has been cited with approval in Kailash v. Nanhku [Kailash v. Nanhku, (2005) 4 SCC 480] as follows : (SCC pp. 496-97, para 34) “34. … ‘The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oftquoted passage Lord Campbell said:

No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.

(p. 338)

‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non- compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.

(pp. 339-40)

Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself; (ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; (iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned. "

In this Court, the counsel for the parties had appeared and had stated that there was absolutely no relationship existing between the parties and that they would have to suffer staying in a broken marriage if the divorce petition is not allowed.

Upon the consideration of the law laid down in the judgment of Amardeep Singh's case (supra), we are of the view that at least the parties should have waited for one week period after the filing of the petition under Section 13B(1) of the Hindu Marriage Act. Also, the Court should have made an effort for a mediation between the parties.

Under such circumstances, we are of the view that the trial court did not commit any error in passing of the order dated 19.12.2024. However, we provide that the parties may now appear before the Principal Judge, Family Court, Gautam Buddh Nagar on 17.03.2025 and the Family Court may try to get a mediation done between the parties within a week and, thereafter, if the mediation does not succeed, then a suitable order be passed on or before

25.03.2025 on the Waiver Application.