Appellant is present in person.

Respondent is present in person.

2. This first appeal assails the judgment dated 30-10-2014 passed by Additional Principal Family Court, Gwalior by which a petition for divorce filed by the husband/appellant under section 13 of the Hindu Marriage Act (for brevity “Act”) on the ground of cruelty has been rejected.

3. During the pendency of this case an application (I.A No. 1429/2015) has been moved jointly by the rival parties stating that they may be granted divorce by mutual consent on the terms and conditions as contained in this application.

4. Reading of the said I.A filed jointly by the rival parties indicates that marriage between the appellant and respondent took place on 24-11-2008 whereafter due to strained relationship, allegations and counter allegations made by both the parties against each other, the matrimonial relationship became sour. The appellant/husband and respondent-wife started living separately since November/December, 2009 and continue to do so till date. The rival parties have further mentioned in the said application that there is no hope of restoration of matrimonial relationship and the marriage is broken down irretrievably. The parties have also agreed to the extent that the appellant/husband has paid an amount of Rs. 2,50,000/- to the respondent-wife and the said amount has been received by the respondent-wife without any demur. The application further discloses that mutual understanding is arrived at between the rival parties to take care of the welfare of the child namely Himanshu aged 5-6 years.

5. We have heard the rival parties in person before this Court and after having discussion with them, we find that there is no possibility of resumption of matrimonial relationship. The appellant and respondent who living apart since about 5 years do not wish to stay with each other. In such a situation dismissal of this appeal shall amount, to further agony to the rival parties as they would be compelled to be bound by the wedlock despite neither wanting to do so. The wedlock has turned into a deadlock.

6. Thus, this Court is of the considered view that the marriage in question has broken down irretrievably.

7. The other issue which crops up is as to whether at this appellate stage can this Court treat this appeal as an application under section 13-B of the Hindu Marriage Act for grant of divorce by consent and waive off the minimum cooling period of six months provided under section 13-B of the Act. In this respect we profitably refer the Division Bench decision of Andra Pradesh High Court in the case of K. Omprakash… v. K. Nalini…., reported in AIR 1986 A.P 167 (DB). The relevant extract of the above said judgment is reproduced below:—

“9…That question is whether the Legislature intended that section 13-B(2) of the Hindu Marriage Act should be treated as a mandatory provision of law or the Legislature intended that section to be treated merely as a directory provision of law. We have already noticed the language of section 13-B(2). On first impression it is not impossible to hold section 13-B(2) to be mandatory. As a mandatory provision of law calls for its pound of flesh and requires to be complied strictly and it not being satisfied with offerings of more substantial compliance of its commands, we will have to adjourn this matter for six months and postpone the deliverance to the parties from this deadlock by the that period of time (sic). It is well settled preposition of law that a statutory provision, though mandatory in form, can yet be treated as directory in substance. The question then arises whether there is anything in the text of section 13-B(2) of its context or purpose or design that calls for section 13-B(2) being interpreted, as directory? In our opinion, there are weighty reasons warranting the reading of section 13-B Cl. (2) as directory. In that context, we must first call attention to the design of the law expressed in its liberalizing tendency of providing relief to parties on the basis of their mutual consent from their broken marriages. We must remember that this relief is granted by bringing about a profound alteration in the concept of a Hindu marriage from that of a sacrament to a contract. By that alteration, law has definitely set its face against forcible perpetuation of the status of matrimony between unwilling partners. Next, we must note that this six month's time fixed by section 13-B (2) is not a rule relating to the jurisdiction of the Courts to entertain a petition filed for divorce by consent. That question of jurisdiction is dealt with by section 13B(1) of the Act and must be strictly complied with. section 13-B(2) is a part of mere procedure. A procedural provision must be interpreted as a handmaid of justice in order to advance and further the interests of justice and not as a technical rule

10. For all the above reasons, we are of the opinion that section 13-B(2) of the Hindu Marriage Act should be read as directory only. section 13-B(2), no doubt cautions the Courts of its duty to fight the last ditch battle to save the marriage; but when the Court is fully satisfied, on the basis of the proved facts, that in the interests of justice of the society and the individuals marriage tie should be put asunder immediately, section 13-B(2) does not impose any fetter on the powers of the Court to grant instant decree of divorce. At any rate, we are clearly of the opinion that the time-table fixed by section 13-B(2) does not apply to an appellate Court. The great Telugu poet Vemana said that the broken iron can be joined together, but not broken hearts. Parties have been living apart for long and their wedlock has now virtually become a deadlock. Chances of reunion had completely faded away. In these circumstances, we think it just and proper to grant a decree of divorce straightway. Accordingly we pass a decree of divorce declaring the marriage between the appellant and the respondent as dissolved with immediate effect.”

8. Following decisions are in the same lines as the Andra Pradesh High Court decision in K. Omprakash's case (supra):—

In the case of Dinesh Kumar Shukla v. Neeta, reported in II (2005) DMC 51 (DB).

“11. From the decisions cited, it is clear that provisions of Subsection (2) of section 13-B has been held to be directory and not mandatory. This appears to be the consistent view.”

In the case of Manoj Kedia v. Anupama Kedia, reported in I (2011) DMC 456 (DB).

“13. We have already observed in the foregoing paragraphs that the marriage between the parties had broken down irretrievably and there is no reasonable chance for re-union of the parties. They have been living apart for the last nine years. Any prolongation of the legal status of the marriage is not likely to bring out reconciliation. It can only help to accentuate their unhappiness by further fomenting their mutual jealousies. They are litigating against each other on the basis of allegations and counter-allegations for over nine years. In these circumstances, we are ready of the opinion that the present application made by the parties for dissolution of marriage under section 13-B of the Act, 1955 is not the result of any collusion between the parties nor was it the result of any passing phase of mental agony or temporary feeling of unhappiness. We have no doubt that decree of divorce under section 13-B of the Act, 1955 can be passed without further waiting for statutory period of six months as per section 13-B (2) of the Act, 1955.”

In the case of Santosh Lalmani Tiwari v. Aaradhana Devi Santosh Tiwari, reported in II (2013) DMC 29 (DB).

“6. The intention of the Legislature was to provide minimum period of six months for re-thinking of the parties. If the said provision is made applicable to the Appellate Court, it would be powerless to grant that relief on the basis of the application filed in the lower Court because 18 months must have elapsed by the time the matter reached the Appellate Forum although the parties are still fighting relentlessly in the Appellate Court and, therefore, in our view, the said waiting period of six months can be waived in a suitable case by the Appellate Court because it could not have been the intention of section 13-B(2) that the Appellate Court should, in each case, insist that the parties should go through the futile and meaningless ceremony of again waiting for completion of six months. We are of the view, therefore, that when the Appellate Court is fully satisfied on the proved facts that marriage tie should be severed by mutual consent immediately since the parties have been living separately for more than the time prescribed under section 13-B and that they have been fighting for sufficiently long period and, in such a case, section 13-B does not impose any fetter on the powers of the Court to grant instant decree of divorce.

13. Applying the ratio of the aforesaid judgments and the observations made by us, we are of the view that in the facts and circumstances of the present case, parties have been residing separately since 2006. Petition for divorce was filed under section 13(1) in 2010 and it was dismissed on 12-6-2012. Appeal was filed in July, 2012. The consent terms which are filed before us are indicative of some sober thinking, after exploring all possible avenues for bringing about union or to dissolve the marriage. We have also asked both, husband and wife, who were present in Court and they have reiterated that consent terms have been filed after great deliberations and after taking into consideration the advantages and disadvantages involved in the case. The terms and conditions in the consent terms make it clear that each of them have no further subsisting claims over each other. We are satisfied that there is no possibility of reconciliation between the parties. We are also satisfied that the decision is not influenced by any external factors including coercion intimidation or undue influence by any person including the parents. Both the parlies are educated and matured and fully comprehend the contemplated parting of ways. Having regard to these facts, we are satisfied that decree for dissolution of marriage solemnized between the parties has to be passed in terms of the consent terms filed in this Court.”

In the case of Mittal Ramesh Panchal v. Nil, reported in I (2014) DMC 20 (DB) (Bom.).

“10. The statutory period of six months provided under section 13-B(2) has been provided with a specific intent that the possibility of last minute reconciliation can be worked out in such matters. In dispensation of justice, the Courts are expected to do the justice between the parties by overcoming the technical difficulties, coming in the way of imparting justice. The waiver of statutory period of six months though not specifically provided but same can he read in provisions as the main object of provision is to libralize divorce. The provision cannot be read in rigidity so as to make the provision ineffective and meaningless. The period of six months is nothing but period provided with a view to enable parties to reconsider their decision and instead of dissolving their marriage resolve their difference. It was never the intention of the Legislature that such period is to be observed irrespective of the facts of the case wherein the marriage has been irretrievably broken and there are no chances of reconciliation between the parlies or it would be futile exercise to wait for six months.”

9. The judgments of Apex Court in the cases of Kanchan Devi v. Promad Kumar Mittal, reported in (1996) 8 SCC 90, Ashok Hurra v. Rupa Bipin Zaveri, reported in (1997) 4 SCC 226, Swati Verma v. Rajendra Verma, reported in (2004) 1 SCC 123, Sanghamitra Ghosh v. Kajal Kumar Ghosh., reported in (2007) 2 SCC 220, Anil Kumar Jain v. Maya Jain, reported in (2009) 10 SCC 415, Devinder Singh Narula v. Meenakshi Nangia., reported in 2012 (4) MPLJ (S.C) 553 : (2012) 8 SCC 580 is further worthy of reference, where the Apex Court has permitted conversion of a petition for divorce under section 13 of the Act into that of a petition under section 13-B of the Act while the same was pending in shape of appeal.

10. Considering the above and the fact that the rival parities are staying separately from each other since about five years and all efforts towards reconciliation have failed the marriage has broken down irretrievably and the amount of Rs. 2,50,000/- as agreed upon by the rival parties has been paid in shape of permanent alimony to the respondent-wife, this Court allows L.A No. 1429/2015.

11. Treating this petition as a petition under section 13-B of the Act, the same is allowed.

12. Consequently, the judgment and degree dated 30-10-2014 passed by the Additional Principal Family Court, Gwalior is set aside.

13. As a necessary consequence, a decree of divorce is granted to the appellant/husband and respondent-wife by way of consent under section 13-B of the Act. The marriage solemnized between the appellant/husband and the respondent wife on 24-11-2008 stands dissolved.

14. in view of the above order, the parties are restrained from making any further claims from each other arising out of the dissolved marriage.

No cost.

Petition allowed.