Jitendra Suthar vs Renuka Suthar
2022 Latest Caselaw 8898 Raj

Citation : 2022 Latest Caselaw 8898 Raj
Judgement Date : 7 July, 2022

Rajasthan High Court - Jodhpur

Jitendra Suthar vs Renuka Suthar on 7 July, 2022

Bench: Vinit Kumar Mathur

(1 of 5) [CW-8322/2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 8322/2022

Jitendra Suthar S/o Kanaram Suthar, Aged About 29 Years, R/o 95 Marg No. 3, Vidhya Nagar, Bhadwasiya, Jodhpur.

----Petitioner Versus Renuka Suthar D/o Babulal Suthar, Aged About 29 Years, R/o Vayusena Area, Jodhpur, Rajasthan.

                                                                 ----Respondent


For Petitioner(s)         :     Mr. Nitin Goklani
For Respondent(s)         :     Mr. Aditya Singh Rathore



        HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                     Order

07/07/2022

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

being aggrieved with the order dated 28.05.2022 passed by the

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

Case No. 357/2022, 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.

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

solemnized as per Hindu customs on 27.04.2016 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 25.06.2020.

4. 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 11.04.2022.

5. The court below registered the said application on 25.04.2022

and fixed the next date as 15.10.2022 for second motion of the

parties.

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

06.05.2022, 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 28.05.2022.

7. 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

be granted.

(3 of 5) [CW-8322/2022]

8. Being aggrieved with order dated 28.05.2022, the present writ

petition has been preferred before this Court.

9. 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.

10. 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.

11. Heard learned counsel for the parties and perused the

impugned order.

12. 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;

ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the

(4 of 5) [CW-8322/2022]

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."

13. 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.

14. 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 acceptance.