Ravi Charan vs Presiding Officer
2022 Latest Caselaw 10855 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11816/2022

1. Ravi Charan S/o Kripal Singh, Aged About 28 Years, By Caste Charan, R/o Digari Kalla, Saran Nagar, Banar Road, Jodhpur.

2. Smt. Dimple W/o Ravi Charan D/o Ghanshyam Singh, Aged About 25 Years, By Caste Charan, R/o House No. 2- A-2, Govind Nagar Housing Board, Rajsamand, Tehsil And Dist. Rajsamand.

----Petitioners Versus Presiding Officer, Family Court No. 1, Jodhpur.

                                                                  ----Respondent


For Petitioner(s)         :     Mr. Dinesh Kumar Ojha
For Respondent(s)         :

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Order

25/08/2022

The present writ petition has been filed against the order

dated 28.07.2022 passed by the learned Family Court No.1,

Jodhpur, whereby the application preferred by the petitioners for

waiver of six months' cooling off period has been rejected.

Learned counsel for the petitioners submits that the

controversy involved in the present case is squarely covered by a

judgment passed by this Court in S. B. Civil Writ Petition

No.10195/2022 (Smt. Priyanka Vs. Balveer Singh).

Learned counsel for the petitioners submits that since both

the petitioners are living separately since, January 2021, the Court

below has committed illegality in rejecting the application of the

parties for waiving of six months' period in absence of any

documentary evidence.

(2 of 3) [CW-11816/2022]

I have considered the submissions made at the Bar and have

gone through the relevant record of the case.

The fact that both the petitioners are living separately since,

January 2021, the necessity of the cooling off period of six months

is not required to be followed in the present case.

The Hon'ble Supreme Court in the case of Amardeep Singh

Vs. Harveen Kaur, reported in (2017) 8 SCC 746 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;

ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section23(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

(3 of 3) [CW-11816/2022]

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."

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.

In light of the facts and circumstances of the case,

particularly the fact that 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 acceptance.

Considering the submissions made at the Bar and in view of

the judgment of the Hon'ble Supreme Court in the case of

Amardeep Singh's case (Supra), the writ petition is allowed.

The order dated 28.07.2022 passed by the learned Family Court

No.1, Jodhpur is set aside and the learned Family Court is directed

to waive off the cooling off period of six months specified under

Section 13-B(2) of the Hindu Marriage Act, 1955 and allow the

application.

The parties are directed to appear before the Court below on

or before 01.09.2022 and the Court below is directed to pass the

decree of divorce in accordance with law.

(VINIT KUMAR MATHUR),J 409-Shahenshah/-

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