Gujarat High Court
Jain Nilesh Moolchand vs Chandni Gyanmal Jain W/O Jain Nilesh ... on 13 October, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/3639/2025 JUDGMENT DATED: 13/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3639 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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JAIN NILESH MOOLCHAND
Versus
CHANDNI GYANMAL JAIN W/O JAIN NILESH MOOLCHAND
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Appearance:
JATIN V YADAV(8946) for the Appellant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 13/10/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN) With the consent of learned advocates appearing for the respective parties, captioned appeal is taken up for final disposal.
2. Captioned appeal is directed against the judgment dated 17.07.2025 passed by the learned Judge, Family Court no.5, Ahmedabad in Family Suit no.1209 of 2025, rejecting the suit.
3. Mr Mukundkumar A. Thakkar, learned advocate states that he has received instructions to appear on behalf of the respondent and would be filing his Vakalatnama during the course of the day or Page 1 of 5 Uploaded by BINOY B PILLAI(HC00183) on Wed Oct 15 2025 Downloaded on : Thu Oct 16 00:19:31 IST 2025 NEUTRAL CITATION C/FA/3639/2025 JUDGMENT DATED: 13/10/2025 undefined latest by tomorrow. It is urged that registry, be directed to accept the Vakalatnama. Registry is directed to accept the Vakalatnama filed by Mr Mukundkumar A. Thakkar, learned advocate.
4. Mr Jatin V. Yadav and Mr Mukundkumar A. Thakkar, learned advocates, have jointly submitted that the learned Judge by rejecting the suit has committed a fundamental error inasmuch as, if the learned Judge was of the opinion that the second motion is moved prematurely, i.e. within less than six months from the date of the first motion, the application ought to have been adjourned, instead of rejecting the same. Also, if the application seeking waiver was not filed, the Court, could have given some time to the parties to file the application.
5. It is jointly submitted that the marriage took place between the appellant and the respondent on 11.12.2017 and it is not in dispute that the parties are staying separately since 04.02.2020, i.e. by now for more than five years, satisfying the statutory requirements of section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the "Act of 1955"). The application was filed on 16.04.2025, followed by the first motion on 12.06.2025, further followed by second motion on 07.07.2025.
6. Reliance is placed on the judgment in the case of Amardeep Singh vs. Harveen Kaur reported in (2017) 8 SCC 746 for the proposition that the period mentioned in sub-section (2) of section 13B of the Act of 1955, is not mandatory, but directory and it is open to the Court to exercise its discretion and pass the order. The Apex Court further held that if the Court is satisfied that the case is made out to waive the statutory period under sub-section (2) of section 13B of the Act of 1955, it can do so considering various Page 2 of 5 Uploaded by BINOY B PILLAI(HC00183) on Wed Oct 15 2025 Downloaded on : Thu Oct 16 00:19:31 IST 2025 NEUTRAL CITATION C/FA/3639/2025 JUDGMENT DATED: 13/10/2025 undefined parameters as indicated therein.
7. It is therefore, submitted that as the parties, are living separately since 04.02.2020, requirement of the statutory period stood satisfied before the first motion itself. Hence, application was filed on 16.04.2025 and the first motion was made on 12.06.2025. It is fairly conceded that the application seeking waiver could not be filed and the second motion was moved on 07.07.2025. It is therefore, submitted that in the absence of waiver application, the learned Judge, at the most could have adjourned the application instead of rejecting it. It is jointly submitted that the rejection was erroneous and the matter be remitted by quashing the order at the stage it was dismissed.
8. Heard the learned advocates appearing for the respective parties.
9. As stated hereinabove, with the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal. The Court has perused and considered the documents made available by the learned advocates.
10. Indisputably, the marriage took place on 11.12.2017 and it is also not in dispute that the appellant and the respondent are living separately since 04.02.2020, i.e. for almost more than five years. An application was filed under the provisions of section 13 of the Act of 1955 together with the affidavits of the respective parties on 16.04.2025. The first motion was held on 12.06.2025 and on 07.07.2025, the second motion was moved which, in the opinion of the learned Judge, was premature, in absence of any application seeking waiver of the statutory period.
11. Apt would be the judgment of the Apex Court in the case of Page 3 of 5 Uploaded by BINOY B PILLAI(HC00183) on Wed Oct 15 2025 Downloaded on : Thu Oct 16 00:19:31 IST 2025 NEUTRAL CITATION C/FA/3639/2025 JUDGMENT DATED: 13/10/2025 undefined Amardeep Singh vs. Harveen Kaur (supra). The period mentioned in the provisions of sub-section (2) of section 13B, was held not to be mandatory, but directory, leaving it open to the Court to exercise its discretion. In paragraph 17, it has been held and observed that the object of the cooling off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties, when there was no chance of reconciliation. In paragraphs 19 and 20, the Apex Court has observed thus:-
"19. 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 13B(2), it can do so after considering the following :
i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(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 XXXIIA 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.
20. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation."
12. In the case on hand, as stated hereinabove, the first motion Page 4 of 5 Uploaded by BINOY B PILLAI(HC00183) on Wed Oct 15 2025 Downloaded on : Thu Oct 16 00:19:31 IST 2025 NEUTRAL CITATION C/FA/3639/2025 JUDGMENT DATED: 13/10/2025 undefined was moved on 12.06.2025. The aberration in the procedure was, non-filing of the application seeking waiver. However, that itself could not have been fatal to the proceedings of Family Suit no.1209 of 2025. The option available to the Court below, was to have adjourned the matter or else required the parties, to have filed an application, seeking waiver of the statutory period with cogent reasons. As both the parties are desirous of availing the benefit of provisions of sub-section (2) of section 13 of the Act of 1955, in the opinion of this Court, no purpose would be served in prolonging the waiting period, which will add to their agony rather than giving a solace. In view of the above, this Court, is of the considered opinion that the learned Judge, was not right in rejecting the suit. Thus, on this limited ground, the judgment dated 17.07.2025 is quashed and set aside, restoring the Family Suit no.1209 of 2025 to its original file, i.e. to the stage of the second motion.
13. The parties, shall be at liberty to file appropriate application as permissible in law and the learned Judge, thereafter, shall decide the Family Suit no.1209 of 2015 in accordance with law.
14. First Appeal, therefore, stands allowed. No order as to costs.
(SANGEETA K. VISHEN,J) (NISHA M. THAKORE,J) BINOY B PILLAI Page 5 of 5 Uploaded by BINOY B PILLAI(HC00183) on Wed Oct 15 2025 Downloaded on : Thu Oct 16 00:19:31 IST 2025