Allahabad High Court
Abhishek Kapoor And Another vs State Of U.P. Thru Prin Secy Deptt ... on 16 August, 2022
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 2900 of 2022
Petitioner :- Abhishek Kapoor And Another
Respondent :- State Of U.P. Thru Prin Secy Deptt Of Home Lko. And Another
Counsel for Petitioner :- Mohd. Nafees,Pawan Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
Heard learned counsel for the petitioners and Sri Neeraj Chaurasiya, learned Standing Counsel for the State.
Instant petition has been filed praying for setting-aside the order dated 25.07.2022 passed by respondent no.2 in Original Suit No.1870 of 2022 in re: Smt. Hema Kapoor vs. Abhishek Kapoor, under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act, 1955') with a further prayer for waiving the cooling off period of six months contemplated under Section 13-B(2) of the Act, 1955.
The case set forth by the petitioners is that they are husband and wife. They had filed an application for dissolution of their marriage by mutual consent before respondent no.2 which was numbered as Original Suit No.1870 of 2022. The suit was filed on 10.05.2022 and registered on 26.05.2022. The next date fixed was 28.11.2022.
An application was filed by the petitioners for waiver of the cooling off period as provided under Section 13-B(2) of the Act, 1955 but the Court vide order dated 25.07.2022 has rejected the said application and has fixed the matter for 28.11.2022 itself.
Reliance has been placed on the judgment of the Apex Court in the case of Amardeep Singh vs. Harveen Kaur - (2017) 8 SCC 746, to contend that the Apex Court after considering the provisions of Section 13-B(2) of the Act, 1955 has held that the period mentioned in Section 13-B(2) is not mandatory but directory and 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. It is contended that this aspect of the matter has not been considered by the Court below and the application has been rejected summarily and hence the instant petition.
Having heard learned counsel for the parties and having perused the records, what emerges is that the Court below has rejected the application filed by the petitioners for waiver of the cooling period as provided under Section 13-B(2) of the Act, 1955. The Apex Court in the case of Amardeep Singh (supra) has held that statutory period as prescribed under Section 13-B(2) of the Act,1955 is not statutory and can be relaxed by the Court on certain grounds. The grounds indicated by the petitioners in the instant petition are that the petitioner no.1 has been appointed by a foreign company situated in Japan and the last date for joining is 25.08.2022. Likewise, petitioner no.2 has obtained a job in Scotland and the last date for joining is 17.08.2022 and in those circumstances they have prayed for waiver of the cooling off period. However, the Court below has rejected the application in a cursory manner without going into the details as to the averments made in the said application or the urgency which was expressed by the petitioners herein.
Considering the aforesaid, the order dated 25.07.2022, a copy of which is Annexure-1 to the petition, is set-aside. The matter is remanded to the family court to decide the application of the petitioners afresh in accordance with law and considering the principles laid down by the Apex Court in the case of Amardeep Singh (supra).
Let the petitioners appear before the Court below after a week on 31.08.2022 along with certified copy of this order. The court below shall proceed to decide the application of the petitioners in accordance with law within next one week.
The writ petition is finally disposed of.
Order Date :- 16.8.2022
A. Katiyar
