Delhi High Court in the
recent case of “Ritu Preti Kapoor and Vinnet Preti”, bearing no MAT. APP. No.
48/2011 case [Citation: [2011 (7) AD(Del) 20] while
dealing with an appeal filed under Section 28 of the Hindu Marriage Act, 1955
read with Section 151 of Code of Civil Procedure filed against an order of
below court dismissing the second motion petition filed by the parties under section 13B(2) of HM Act, held that:
“The period of 6 to 18 months being provided in
section 13B(2) is a period of interregnum which is intended to give the parties
time and opportunity to reflect on their move as the parties may have second
thoughts about their decision during this period. The underlying principle
behind this section is that both the parties should be fully willing and
confident about their decision, both at the time of the first motion as well at
the time of the second motion. The time of 6 to 18 months is essentially the
time where one of the parties if has to if in doubt or has a change of heart
withdraws its petition for divorce. Mutuality is the sine qua non for this
section and the requirement is that Mat App No.48/2011 Page 4 of 8 the consent
to part from each other should be subsisting throughout this period. In the
case of Pankaj Parmar v. Shikha Parmar (119 (2005) DLT 278), this court has taken a view that the
period of 18 months as contemplated in the section is the time limit for
withdrawal of the first motion and not outer limit for filing of motion for
grant of decree by mutual consent and this duration of 18 months therefore
should not be taken to be a period of limitation fixed for filing of the second
motion.” [Para 5]
“…..this court is totally in agreement with the law propounded by
this court in the case of Pankaj Parmar not to treat the period of 18 months as
the limitation period after which the petition for second motion cannot be
preferred. The courts while dealing with the petition under section 13B
cannot Mat App No.48/2011 Page 6 of 8 forget that the courts are required to
see the complete agreement of the parties for the dissolution of marriage and
not that the consent of the both the parties, however being there, has been
made at a date later than contemplated as such interpretation would render the
expression "divorce by mutual consent" as otiose. The courts cannot
frustrate the purpose and intent of the said section by bringing in the
technicalities of limitation, hence making the real provision incapacitated. [Para
7]