Allahabad High Court
Smt. Nivedita Shukla vs Utkarsh Tripathi And Another on 3 April, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 22
Case :- CIVIL REVISION No. - 18 of 2023
Revisionist :- Smt. Nivedita Shukla
Opposite Party :- Utkarsh Tripathi And Another
Counsel for Revisionist :- Kaustubh Singh
Counsel for Opposite Party :- Amit Tewari,Ajay Kumar Shukla
Hon'ble Manish Mathur,J.
Heard Mr. K. K. Sharma and Mr. Kaustubh Singh, learned counsel for revisionist and Mr. Amit Tewari, learned counsel for respondent no1.
Vide order dated 01.03.2023, notice to respondent No.2 already stood dispensed with and subsequently vide order dated 01.03.2023, the dispute between petitioner and respondent No.1 was referred to mediation cell of the High Court. In pursuance thereof, the mediation report dated 16.03.2023 has been furnished and is on record indicating a settlement having been arrived at between the aforesaid parties particularly with regard to dissolution of their marriage and withdrawal of cases filed against each others as indicated in the settlement agreement.
The petition under Article 227 of Constitution of India had initially been filed against order dated 11.01.2023 passed in Misc. Case No.1401 of 2022; Utkarsh Tripathi versus Nivedita Shukla under Section 13(B)2 of Hindu Marriage Act whereby application filed under Section 13(8)(2) of the Hindu Marriage Act, 1955 has been rejected refusing to waive cooling off period.
With regard to aforesaid proposition, Hon'ble Supreme Court in the case of Amardeep Singh versus Harveen Kaur reported in (2017) 8 Supreme Court Cases 746 has already laid down criterion whereunder the cooling off period can be waived, relevant paragraphs of which are quoted as under:-
"17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. 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. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.
xxx xxx
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 13-B(2), it can do so after considering the following:
(i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(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 32-A 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 13-B(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."
In the present dispute, it is evident that marriage was solemnized on 16.02.2021 whereafter as per submissions of the parties themselves, they are living separately since 28.02.2021 and have mutually agreed to separate due to which the application for divorce was preferred on 05.02.2022 along with an application for exemption of cooling off period, which has been rejected by means of impugned order.
Upon applicability of aforesaid judgment, in the facts and circumstances of the present case, it is apparent that the parties have been married for some length of time and are also living separately within 12 days from the date of marriage. The other proceedings between the parties have already been resolved as indicated in the settlement agreement. It has been specifically stated that there is no possibility of reconciliation between the parties. The settlement agreement also indicates that Second Party has agreed to hand over a Demand Draft of Rs.3,00,000/- to First Party at the time of final motion in the Misc. Case No.1401 of 2022 under Section 13-B Hindu Marriage Act, 1955, before Additional Principal Judge Family Court, Unnao.
Considering the aforesaid factors, it is apparent that there is no possibility of reconciliation between the parties who are living separately and as such there was no occasion to have rejected the application for waiving cooling off period.
Considering the aforesaid discussion, the order dated 11.01.2023 passed by Additional Principal Judge, Family Court-2, Unnao in Misc. Case No.1401 of 2022 is set aside. Furthermore in view of settlement arrived at between the parties dated 16.03.2023, the application filed under Section 13(B)2 of Hindu Marriage Act 1955 registered as Misc. Case No.1401 of 2022 is allowed exercising inherent powers of this Court under Article 227 of Constitution of India and the marriage solemnized between the applicant Utkarsh Tripathi versus Nivedita Shukla on 16.02.2021 stands dissolved on the basis of mutual consent. The settlement agreement dated 16.03.2023 between the parties shall form a part of this order.
The Additional Principal Judge, Family Court No.2, Unnao is required to pass appropriate orders in Misc. Case No.1401 of 2022 in consonance with this order and the settlement agreement dated 16.03.2023 upon fulfillment of conditions thereof.
The present petition as such stands allowed in terms thereof. Parties to bear their own cost.
Order Date :- 3.4.2023
Subodh/-
