Rajasthan High Court - Jodhpur
Monika Khatik vs Mahendra Kumar on 9 February, 2022
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2179/2022
Monika Khatik W/o Mahendra Kumar, Aged About 23 Years, R/o
Jayanagar Tehsil Asind At Present Khatik Mohalla, Badnor Tehsil
Badnor, District Bhilwara, Rajasthan.
----Petitioner
Versus
Mahendra Kumar S/o Gautam Chand, Aged About 26 Years, R/o
Jayanagar Tehsil Asind District Bhilwara, Rajasthan.
----Respondent
For Petitioner(s) : Mr. OP Mehta, through V.C.
Mr. VD Vaishnav
For Respondent(s) : Mr. Priyansh Arora
JUSTICE DINESH MEHTA
Order
09/02/2022
1. Instant writ petition lays challenge to an order dated
06.01.2022 passed by the Judge, Family Court, Gulabpura
whereby the petitioner's application dated 18.12.2021 for waiver
of cooling off period for deciding the application for mutual divorce
filed under Section 13B of the Hindu Marriage Act, 1955
(hereinafter referred to as the 'Act of 1955') has been rejected.
2. The facts germane to the present petition are that the
petitioner married the respondent when she was a minor. After
attaining majority, the petitioner's matrimonial relation with the
respondent got strained due to which she filed an application for
dissolution of marriage under Section 13 of the Act of 1955 on
21.11.2020.
(2 of 4) [CW-2179/2022]
3. The petitioner's application under Section 13 of the Act of
1955 was rejected by the trial Court, vide its order dated
02.12.2021 inter alia observing that the petitioner was deserted
on 28.11.2019 and by the time of filing the petition, the two
year's statutory period given under Section 13(1)(ib) had not
elapsed.
4. After some time, as the matrimonial relations between the
petitioner and the respondent did not improve, they jointly filed a
petition seeking dissolution of the marriage with mutual consent
under Section 13B of the Act of 1955 on 06.12.2021.
5. Along with the petition so filed, an application dated
18.12.2021 for waiving of the cooling off period of six months was
also filed. The application for waiving of the cooling off period has
been rejected by the Court below vide order dated 06.01.2022
inter alia observing that the petitioner is seeking dissolution of
marriage only with an intention to obtain Government service.
6. The learned Judge, Family Court has made an observation
that in view of various judgments of High Court and Hon'ble the
Supreme Court, there is no requirement of dispensing with the
statutory period of 6 months.
7. This Court deems it appropriate to reproduce the reasons
ascribed by the Family Court for rejecting the application. The
same reads as under:-
"mDr ifjfLFkfr;kas eas gh /kkjk 13 ch fgUnq fookg vf/kfu;e
ds rgr fookg foPNsn dh fMØh ds fy, 06 ekg of.kZr
vof/k dk vfHkR;tu fd;k tk ldrk gS ysfdu orZeku
izdj.k dh ifjfLFkfr;k¡ blls fHkUu gSA orZeku izdj.k eas
ek= izkFkhZ;k eksfudk dks ljdkjh ukSdjh eas rykd"kqnk
efgyk ds vk/kkj ij ukSdjh ikus gsrq fookg foPNsn dh
fMØh dh vko";drk gSA tks bl U;k;ky; ds er esa o
(3 of 4) [CW-2179/2022]
ekuuh; mPpre U;k;ky; o mPp U;k;ky; }kjk fn;s x;s
fn"kk funsZ"kkas esa mfpr izrhr ugha gksrk gSA vkt orZeku
ifjizs{; eas ;g ns[kus eas vk;k gS fd efgykvksa }kjk ljdkjh
ukSdjh eaas ifjR;Drk ds vk/kkj ij vkj{k.k izkIr djus gsrq
tku&cq>dj rykd dh fMØh U;k;ky; eas izkIr dh tkrh
gS tks dnkfi vf/kfu;e o ekuuh; mPpre U;k;ky; o
mPp U;k;ky; }kjk fn;s x;s fn"kk funsZa"kkas ds mnns"; dks
iwjk ugha djrk gSA fookg foPNsn ,d vR;ar dfBu
ifjfLFkfr;ksa eas fy;k x;k fu.kZ; gS ftls dsoy ek= ukSdjh
ikus ds mnns"; ds fy;s gfFk;kj dh rjg mi;ksx eas ugha
fy;k tk ldrk gSA vr% esjs fouez er eas mDr vk/kkj ij
dqfyax vof/k vfHkR;tu (waive off) djuk dnkfi mfpr
ugha gSA izkFkhZ;k }kjk viuh rykd ;kfpdk ds vkosnu eas
dgh Hkh ;g Li'V nf"kZr ugha fd;k gS fd fdl fnukad dks
mldk fookg gqvk] fdrus fnu og vius ifr ds lkFk
nkEiR; thou eas jgh vkSj fdu fo"ks'k ifjfLFkfr;kas ds
dkj.k ls mldks fookg foPNsn pkfg,A dqfyax vof/k
vfHkR;tu (waive off) djuk dsoy ek= viokfnd
ifjfLFkfr;ksa eas mfpr gSA mls lkekU; fu;e ugha cuk;k
tk ldrk gS] vU;Fkk /kkjk 13 ch fgUnq fookg vf/kfu;e eas
of.kZr 06 ekg dh dqfyax vof/k dk mnns"; gh lekIr gks
tk;sxkA vr% mijksDr foospu ,oa izdj.k ds rF;ksa]
ifjfLFkfr;ksa dks ns[krs gq, mDr izkFkZUkk&i= fujk/kkj izrhr
gksrk gS tks vLohdkj dj [kkfjt fd;k tkrk gSA i=koyh
okLrs lk{; izkFkhZx.k fnukad 15-02-2022 dks is"k gksA"
8. In the opinion of this Court, the reason given by the Court
below that the petitioner has filed this petition under Section 13B,
so also the application for waiving of cooling period for the
purpose of getting employment in the Government service as a
divorcèe candidate, cannot be countenanced. The observation
made by the Court below is not only based on conjunctures and
surmises, the same are also not germane for the purpose of
deciding application for waiving off of cooling period. There is no
material to infer that the application for divorce has been filed for
getting Government job.
9. While rejecting the application dated 18.12.2021, the Family
Court has not even considered the vital fact that the petitioner
(4 of 4) [CW-2179/2022]
had earlier moved an application under Section 13 of the Act of
1955, which stood dismissed because the statutory period of one
year, as prescribed under Section 14 of the Act, had not passed.
This fact itself is enough to establish that the matrimonial
relations between the petitioner and the respondent were
discordant.
10. The impugned order dated 06.01.2022 passed by the Judge,
Family Court is hereby quashed and set aside. The application
dated 18.12.2021 is restored back to the dockets of Family Court,
Gulabpura, who shall reconsider the application afresh in
accordance with law on the next date of hearing which is reported
to be on 15.02.2022.
11. Stay application also stands disposed of.
(DINESH MEHTA),J
44-jayesh/-
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