Allahabad High Court
Smt. Mansi Agarwal And Another vs Ld. Principal Judge, Family ... on 22 March, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 22
Case :- MATTERS UNDER ARTICLE 227 No. - 1056 of 2023
Petitioner :- Smt. Mansi Agarwal And Another
Respondent :- Ld. Principal Judge, Family Court, Lucknow
Counsel for Petitioner :- Tushar Mittal,Anjani Kumar Mishra
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioners.
Vide order dated Ist March, 2023 the dispute between petitioners 1 and 2 was referred to mediation cell of the High Court. In pursuance thereof, the mediation report dated 20th March, 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 non institution of cases 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 22nd February, 2023 passed in Regular Suit No. 436 of 2023 under Section 13(B) 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.
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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 9th April, 2014 whereafter as per submissions of the parties themselves, they are living separately since 10th November, 2018 and have mutually agreed to separate due to which the application for divorce was preferred on 13th February, 2023 along with an application for waiving the 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 a considerable length of time and are also living separately for past more than four years. 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.
Considering the aforesaid factors, it is apparent that there is no possibility of reconciliation between the parties who are living separately for past more than four years and as such there was no occasion to have rejected the application for waiving cooling off period.
Considering the aforesaid discussion, the order dated 22nd February, 2023 passed by the family Court, Lucknow in Regular Suit No. 436 of 2023 is set aside. Furthermore in view of settlement arrived at between the parties dated 20th March, 2023, the application filed under Section 13(B) of Hindu Marriage Act 1955 registered as Regular Suit No. 436 of 2023 is allowed exercising inherent powers of this Court under Article 227 of Constitution of India and the marriage solemnized between the applicants Smt. Mansi Agarwal and Rahul Garg on 9th April, 2014 stands dissolved on the basis of mutual consent. The settlement agreement dated 20th March, 2023 between the parties shall form a part of this order.
The Principal Judge, Family Court, Lucknow is required to pass appropriate orders in Regular Suit No. 436 of 2023 in consonance with this order and the settlement agreement dated 20th March, 2023.
The present petition as such stands allowed in terms thereof.
Parties to bear their own cost.
Order Date :- 22.3.2023
prabhat
