Monika Sharma vs Rahul Sharma
2021 Latest Caselaw 16637 Raj

Citation : 2021 Latest Caselaw 16637 Raj
Judgement Date : 9 November, 2021

Rajasthan High Court - Jodhpur

Monika Sharma vs Rahul Sharma on 9 November, 2021

Bench: Dinesh Mehta

(1 of 5) [CW-15518/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 15518/2021

Monika Sharma D/o Sh. Bhanwar Lal Sharma, Aged About 29 Years, At Present R/o Gadriyawas, Dhariyawad, District Pratapgarh.

----Petitioner Versus Rahul Sharma S/o Sh. Ghanshyam Sharma, B/c Brahman, R/o H. No. 181/27, Near Shiksha Niketan Vidhyalaya, Paneriyon Ki Madri, Girwa, District Udaipur.

                                                                 ----Respondent


 For Petitioner(s)          :    Mr. Ravi Panwar with
                                 Mr. Gajendra Panwar
 For Respondent(s)          :    Mr. Praveen Bhati


                     JUSTICE DINESH MEHTA

                                     Order

09/11/2021

1. This writ petition has been preferred on behalf of the

petitioner being aggrieved with the order dated 08.09.2021 passed

by the Family Court No.1, Udaipur (for short 'the court below') in

Hindu Marriage Case No.391/2021, whereby the joint application

filed by the petitioner and the respondent (hereinafter "parties")

for waiver of six months period prescribed under Section 13-B(2)

of the Hindu Marriage Act, 1955 (for short 'the Act of 1955) has

been dismissed.

2. Learned counsel for the respondent Mr. Praveen Bhati has

submitted that the respondent is also aggrieved with the order

impugned and this writ petition has been filed with the consent of

the respondent. Mr. Bhati has submitted that he has no objection if

the relief prayed for in this writ petition is granted.

(2 of 5) [CW-15518/2021]

3. Brief facts of the case are that the marriage of the parties

was solemnized as per Hindu customs on 03.12.2011 in

Dhariyawad, District Pratapgarh. It appears that soon after the

marriage, the relations of the parties became strained and both of

them have been residing separately since 2019.

3. Despite the best efforts of the parties to restore conjugal

relations and in spite of regular counselling by their near relatives

the matrimonial dispute between them could not be settled and

therefore the parties jointly filed an application under Section 13-B

of the Act of 1955 seeking divorce by mutual consent before the

court below on 02.08.2021.

4. The court below registered the said application on

02.08.2021 and fixed the next date as 02.03.2022 for counselling

of the parties.

5. In the meantime, the parties preferred a joint application on

08.09.2021, praying for waiver of six months' statutory period

specified under Section 13-B(2) of the Act of 1955. Arguments on

the said application were heard and the court below dismissed the

said application vide its order dated 08.09.2021.

6. The judgment of the Hon'ble Supreme Court rendered in the

case of Amardeep Singh Vs. Harveen Kaur, reported in

(2017) 8 SCC 746 was placed before the court below, however,

the court below observed that since the facts of Amardeep

Singh's case (supra) are distinguishable from the facts of the

present case and no extraordinary situation exists in the present

case, the application seeking waiver of six months' statutory

period specified under Section 13-B(2) of the Act of 1955 cannot

(3 of 5) [CW-15518/2021]

7. Being aggrieved with order dated 08.09.2021, the present

writ petition has been preferred before this Court.

8. Learned counsel for the parties have submitted that both, the

petitioner and the respondent are highly educated persons and

both of them have decided to end their marriage by mutual

consent after due deliberations. It is also submitted that the

decision by the parties to end their marriage has not been taken in

a hurry and reconciliation between the parties is highly unlikely. It

is further submitted that the conditions set out in Amardeep

Singh's case (supra) under which statutory period of six months,

as specified under Section 13-B(2) of the Act of 1955, can be

waived are fulfilled in the present case and the court below has

erred in refusing waiver of the six months' statutory period.

9. The counsels for the parties have therefore prayed that the

order impugned be set aside and the court below be directed to

condone the waiver of the statutory period specified under Section

13-B(2) of the Act of 1955.

10. Heard learned counsel for the parties and perused the

impugned order.

11. The Hon'ble Supreme Court in Amardeep Singh's case

(supra) has held as under :-

"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;

(4 of 5) [CW-15518/2021]

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."

12. After taking into consideration the facts of the present case, I

am of the opinion that the conditions set out by the Hon'ble

Supreme Court in Amardeep Singh's case (supra) are fulfilled in

the present case.

13. In light of the facts and circumstances of the case,

particularly the fact that the parties are sufficiently educated and

are aware of their rights - the petitioner (wife) is engaged in a

private job and the respondent (husband) is running a business.

As they have mutually decided to end their matrimony finding no

hope/chance of reconciliation, I am of the opinion that their

application for waiver of the statutory period of six months

specified under Section 13-B(2) of the Act of 1955 deserves