Rohit vs Smt. Jyoti
2023 Latest Caselaw 5826 MP

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IN THE         HIGH COURT OF MADHYA PRADESH
                     AT I N D O R E
                              BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                   &
    HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA

                    ON THE 11th OF APRIL, 2023


                   FIRST APPEAL No. 287 of 2022

BETWEEN:-
ROHIT S/O KAILASHCHANDRA RATHORE, AGED ABOUT 39 YEARS,
OCCUPATION: RETD. (BHARTIYA THAL SENA) 60, L.I.G. COLONY,
CIVIL LINE, DEWAS, DISTRICT-DEWAS (MADHYA PRADESH)
                                                      .....APPELLANT
(SHRI NILESH SHARMA, LEARNED COUNSEL FOR THE APPELLANT)

AND
SMT. JYOTI W/O RAHIT RATHORE, AGED ABOUT 34 YEARS,
OCCUPATION: HOUSE WIFE, AT PRESENT-70/2, SECTOR A,
KHANDELWAL NAGAR, NAKSHATRA HOTEL KE SAAMNE, SHRADDHA
MEDICAL KE PAAS, UJJAIN, ADDRESS : 68, MAHESH NAGAR, MEENA
DHARMSHALA KE PICHHE, UJJAIN, DISTRICT-UJJAIN (MADHYA
PRADESH)
                                                   .....RESPONDENTS
(SHRI AYUSH JAIN, LEARNED COUNSEL FOR THE RESPONDENT)


      This appeal coming on for admission this day, JUSTICE
SUSHRUT ARVIND DHARMADHIKARI passed the following:

                               ORDER

Heard on I.A. No.2814/2023, a joint application under Section 13(B)

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of the Hindu Marriage Act, 1955 (in short "the Act, 1955).

2. The present appeal has been filed by the appellant (husband) being aggrieved by the judgment and decree dated 20.01.2022 passed by the Principal Judge, Family Court, Dewas in RCSHM 168/2018, whereby the petition seeking divorce under Section 13(1) of the Act, 1955 has been rejected.

3. The aforesaid joint application has been filed by the parties under Section 13(B) of the Act, 1955 seeking divorce by mutual consent on the terms and conditions as enumerated in the application.

4. The brief facts of the case are that the appellant and husband got married on 05.05.2009 as per the Hindu customs and traditions. One daughter was born out of the wedlock on 20.06.2016. Thereafter, both of them are residing separately for more than five years on account of irreconcilable differences and the marriage has been irretrievably broken down between the parties. Even the mediation proceedings for reconciliation have failed. During the pendency of the present appeal, the appellant and respondent have decided to obtain a decree of divorce by mutual consent and filed a joint application for grant of divorce by mutual consent. It is further stated that both of them are already living separately for more than five years, therefore, further pendency of this divorce petition to exhaust the cooling off period for a period of six months would seriously affect the future of both the appellant and the respondent. In such a situation, in light of the judgment delivered by the Apex Court in the case of Amardeep Singh Vs. Harveen Kaur reported in AIR 2017 SC 4417, the cooling off period of six months may be waived off.

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5. It is further stated that lot of efforts have been made by both the parties as well as this Court to dissolve the dispute amicably but the same has failed and the respondent and appellant are adamant to live separately and there is no possibility of compromise between the parties in future. The appellant has paid a sum of Rs.23,00,000/- (Twenty Three Lacs) to the respondent-wife as permanent alimony vide "DD No.003769" dated 06.04.2023 drawn at State Bank of India, Dewas Branch in full and final settlement. Apart from the aforesaid, certain conditions have been laid down in the application. The Apex Court in the case of Amardeep Singh Vs. Harveen Kaur (supra) has held as under:-

"Applying the above to the present petition, 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 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

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alimony, custody of child or any other pending issues between the parties.

iv) The waiting period will only prolong their agony."

6. In view of the above judgment passed by the Apex Court and taking into consideration the fact that now the parties have amicably settled the matter and are already living separately and there are no chances of any settlement between them, hence, the cooling period of six months is also waived off.

7. The terms and conditions as laid down in the application under Section 13(B) of the Act, 1955 shall apply to both the parties and they would abide by the terms and conditions as mentioned in the application. On the basis of the aforesaid, the application filed by both the parties under Section 13(B) of the Act is allowed. The marriage solemnized between the appellant- husband and the respondent-wife is dissolved. The impugned judgment and decree dated 20.01.2022 passed by the Principal Judge, Family Court, Dewas is set aside. No order as to costs.

8. Let a decree be drawn accordingly. Let the record of the case be sent back to the concerned court.

         (S. A. DHARMADHIKARI)                    (PRAKASH CHANDRA GUPTA )
                JUDGE                                    JUDGE



        N.R.
NAREND Digitally  signed
         by NARENDRA
RA       KUMAR
         RAIPURIA
KUMAR Date:
         2023.04.12
RAIPURIA 19:15:41 +05'30'