Smt. Saloni Adarsh vs Principal Judge Family Court Lko. ...
2022 Latest Caselaw 20885 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 
Case :- MATTERS UNDER ARTICLE 227 No. - 4866 of 2022
 
Petitioner :- Smt. Saloni Adarsh
 
Respondent :- Principal Judge Family Court Lko. And Another
 
Counsel for Petitioner :- Mrs.Suniti Sachan,Krishna Kumar Singh,Manoj Kumar Singh
 

 
Hon'ble Abdul Moin,J.

Heard learned counsel for the petitioner and Ms. Meenal Duggal, Advocate who files her Vakalatnama on behalf of respondent no.2.

Instant petition has been filed praying for setting-aside the order dated 21.09.2022, a copy of which is annexure 1 to the petition passed by respondent no.1 i.e learned Principal Judge, Family Court, Lucknow in Original Suit No.3217 of 2022 in re: Smt Saloni Adarsh Vs. Ankit Bhardwaj 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 petitioner is that she had filed an application for dissolution of her marriage by mutual consent before respondent no.1 which was numbered as Original Suit No.3217 of 2022. The suit was filed on 09.09.2022.

An application was filed by the petitioner for waiver of the cooling off period as provided under Section 13-B(2) of the Act, 1955 but the Court vide order dated 21.09.2022 has rejected the said application and has fixed the matter for 10.03.2023 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.

Considering the aforesaid, the order dated 21.09.2022, a copy of which is Annexure-1 to the petition, is set-aside. The learned family court is directed to decide the application of the petitioner and consider for waiver of cooling off period afresh within a period of four weeks from the date of receipt of a certified copy of this order in accordance with law after hearing all the parties and considering the principles laid down by the Apex Court in the case of Amardeep Singh (supra).

The writ petition is finally disposed of.

Order Date :- 13.12.2022

Pachhere/-