Ankita Singhal vs Hemant Kumar Aseri
2021 Latest Caselaw 17878 Raj

Citation : 2021 Latest Caselaw 17878 Raj
Judgement Date : 29 November, 2021

Rajasthan High Court - Jodhpur

Ankita Singhal vs Hemant Kumar Aseri on 29 November, 2021

Bench: Dinesh Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16579/2021

Ankita Singhal W/o Shri Hemant Kumar Aseri D/o Late Shri Mahendra Kumar Singhal, Aged About 29 Years, By Caste Agarwal, R/o Plot No. 321, Shubhash Nagar, Behind 2Nd Water Tank Pal Road, Jodhpur (Raj.).

----Petitioner Versus Hemant Kumar Aseri S/o Shri Narendra Kumar Aseri, Aged About 34 Years, By Caste Jeengar, R/o Khasra No. 24/2 House No. 10 Nandari Fanta, Banar Road Jodhpur (Raj.).

                                                                ----Respondent


For Petitioner(s)        :     Mr. N. L. Joshi with
                               Ms. Kirti Pareek
For Respondent(s)        :     Mr. Hemant Kumar, present in person



                    JUSTICE DINESH MEHTA

                                    Order

29/11/2021

1. Mr. Hemant Kumar - respondent is present in person. The

service is, therefore complete.

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

petitioner being aggrieved with the order dated 16.11.2021 passed

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

Suit No.605/2021, 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.

3. Mr. Hemant Kumar Sharma, respondent - present in person,

submitted that the respondent is also aggrieved with the order

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

(2 of 5) [CW-16579/2021]

the respondent. Mr. Hemant Kumar submitted that he has no

objection if the relief prayed for in this writ petition is granted.

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

was solemnized as per Hindu customs on 05.11.2012 in Jodhpur.

It appears that soon after the marriage, the relations of the

parties became strained and both of them have been residing

separately since 2014.

5. 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 17.09.2021.

6. The court below registered the said application and fixed the

next date as 23.03.2022 for counselling of the parties.

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

16.11.2021, 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 16.11.2021.

8. 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

(3 of 5) [CW-16579/2021]

case, the application seeking waiver of six months' statutory

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

be granted.

9. Being aggrieved with order dated 16.11.2021, the present

writ petition has been preferred before this Court.

10. Learned counsel for the petitioner and respondent present in

person have submitted that both, the petitioner and the

respondent are 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.

11. The counsel for the petitioner and respondent - present in

person have therefore jointly prayed that the order impugned be

set aside and the court below be directed to condone or waive the

statutory period specified under Section 13-B(2) of the Act of

1955.

12. Heard learned counsel for the parties and perused the

impugned order.

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

(supra) has held as under :-

(4 of 5) [CW-16579/2021]

"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."

14. 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.

(5 of 5) [CW-16579/2021]

15. 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) has completed

Senior Secondary and the respondent (husband) is having a

degree of LL.B.; 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