Smt. Harshita Kalra vs Prateek Bhambhani
2022 Latest Caselaw 8938 Raj

Citation : 2022 Latest Caselaw 8938 Raj
Judgement Date : 8 July, 2022

Rajasthan High Court - Jodhpur

Smt. Harshita Kalra vs Prateek Bhambhani on 8 July, 2022

Bench: Vinit Kumar Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9215/2022

Smt. Harshita Kalra W/o Prateek Bhambhani D/o Manish Kalra, Aged About 23 Years, 97B, Shakti Nagar, Udaipur, Rajasthan.

----Petitioner Versus Prateek Bhambhani S/o Ramesh Bhambhani, Aged About 26 Years, 1, Krishna Pushpa Villa, Gyan Sarovar Road, Gora Chapra, Mount Abu, District Sirohi (Raj.)

----Respondent

For Petitioner(s) : Ms. Deepika Purohit For Respondent(s) : Mr. R.S. Bhati for Mr. Manish Pitaliya

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

08/07/2022

This writ petition has been preferred on behalf of the

petitioner being aggrieved with the order dated 01.06.2022

passed by the Family Court No.1, Udaipur (for short 'the court

below') in Civil Case No. 327/2022, whereby the joint application

filed on 09.05.2022 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.

Learned counsel for the respondent Mr. R.S. 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-9215/2022]

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

was solemnized as per Hindu customs on 09.04.2021. It appears

that soon after the marriage, the relations of the parties became

strained and both of them have been residing separately since

20.04.2021.

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.

In the meantime, the parties preferred a joint application on

09.05.2022, 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 01.06.2022.

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.

Being aggrieved with order dated 01.06.2022, the present

writ petition has been preferred before this Court.

(3 of 5) [CW-9215/2022]

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.

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.

Heard learned counsel for the parties and perused the

impugned order.

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 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;

(4 of 5) [CW-9215/2022]

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."

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.

Hence, this writ petition is allowed. The impugned order

dated 01.06.2022 passed by the court below is set aside and their