Arpit Bhoot vs Mehak Bhoot (2023/Rjjd/010665)
2023 Latest Caselaw 3140 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 5327/2023

Arpit Bhoot S/o Lat. Sh. Mahesh Bhoot, Aged About 35 Years, Through Authorized Signatory His Mother Smt. Anuradha Bhoot W/o Late Sh. Mahesh Bhoot, R/o Bhoot Oil Mill, 3, Heavy Industrial Area, Jodhpur.

----Petitioner Versus Mehak Bhoot W/o Sh. Arpit Bhoot D/o Sh. Nitin Chopra, Aged About 32 Years, H No. 16, Roop Rajat Sarovar, Pal Road, Jodhpur.

                                                                   ----Respondent


For Petitioner(s)           :     Mr. CS Kotwani
For Respondent(s)           :     Mr. NS Rajpurohit
                                  Mrs. Mehak Bhoot, present in person

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

18/04/2023

1. The present writ petition has been preferred claiming the

following reliefs :-

"i. The impugned order dated 10.04.2023 (Annex.4) may kindly be ordered to be quashed and set aside. ii. The learned Family Court, Jodhpur Metro may kindly be ordered to be directed to permit humble petitioner to appear before Court through Video Conferencing for the purpose of grant of divorce and it is further prayed that cooling of period, as available in the provisions of Section 13B of the Act of 1955, may also be kindly be ordered to be condoned and learned family court may kindly be directed to fix the date for second motion after ten days and pass the appropriate divorce decree in favour of the humble petitioner and the respondent."

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2. Learned counsel for the petitioner submits that the petitioner

is an enrolled Advocate and because of series of matrimonial

litigation, he has justifiable reason to appear through Video

Conferencing from abroad, and thus, the petitioner may be

permitted to appear before the Court through Video Conferencing,

in a matter pertaining to grant of divorce; such prayer, as per

learned counsel, is being made in this petition on count of the

intensive criminal litigation having been launched against the

petitioner, as a result of the matrimonial discord between the

parties, and thus, the petitioner is unable to put his physical

appearance before the Court, at this juncture.

3. Learned counsel for the petitioner, in support of his

submission, relied upon the judgment rendered by Hon'ble Apex

Court in the case of Krishna Veni Nagam Vs. Harish Nagam;

Transfer Petition (Civil) No.1912/2014, decided on

09.03.2017; relevant portion whereof reads as under:-

"12. Mr. Nadkarni, learned Addl. Solicitor General has suggested that it will be appropriate to give some directions to meet the situation. He submitted that paramount consideration in dealing with the issue ought to be the interest of justice and not mere convenience of the parties. Thus, where husband files a petition at a place away from the residence of the wife, the husband can be required to bear travel and incidental expenses of the wife, if it is so considered appropriate in the interest of justice. At the same time, if the husband has genuine difficulty in making the deposit, proceedings can be conducted by video conferencing. At least one court room in every district court ought to be equipped with the video conferencing facility. The interest of the minor child has also to be kept in mind along with the interest of the senior citizens whose interest may be affected by one of the parties being required to undertake trips to distant places to face the proceedings. Protracted litigation ought

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to be avoided by better management and coordination so that number of adjournments can be reduced.

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14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court's jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing[12].

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18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:-

i) Availability of video conferencing facility.

ii) Availability of legal aid service.

iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.

iv) E-mail address/phone number, if any, at which litigant from out station may communicate.

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19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017. However, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No.179A/2013 under Section 13 of the Act titled "Harish Nagam vs. Krishna Veni Nagam" pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video conferencing. Records shall be sent by court where proceedings are pending to the transferee court forthwith. "

4. Learned counsel for the petitioner also submits that the

cooling period for the second motion, in the given factual matrix,

deserves to be waived. In this regard, learned counsel relied upon

the judgment rendered by a Coordinate Bench of this Hon'ble

Court in the case of Monika Sharma Vs. Rahul Sharma (S.B.

Civil Writ Petition No.15518/2021) decided on 09.11.2021;

relevant portion whereof reads as under:

"6. 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.

11. The Hon'ble Supreme Court in Amardeep Singh's case (supra) has held as under :-

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"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."

12. 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.

13. 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

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for waiver of the statutory period of six months specified under Section 13-B(2) of the Act of 1955 deserves acceptance.

14. Hence, this writ petition is allowed. The impugned order dated 08.09.2021 passed by the court below is set aside and their application dated 08.09.2021 is, hereby allowed. The statutory period of six months specified under Section 13-B(2) of the Act of 1955 is hereby waived in exercise of extra ordinary powers available to this Court by virtue of Article 226 of the Constitution of India.

15. The parties are directed to appear before the court below on 22nd November 2021, whereafter the concerned Family Court will pass decree of divorce in accordance with law. "

5. The respondent-wife (present in person) alongwith her

learned counsel, while not controverting the factum of the

aforementioned ongoing criminal litigation, have apprised this

Court of the irreversible damage being caused to the institution of

marriage and the suffering arising out of continuance of such

litigation.

6. Learned counsel for the parties thereafter, jointly submit that

all necessary efforts, including three rounds of mediation before

learned Mediator(s), Mediation Centre attached with this Hon'ble

Court, have been made, but the same could not yield any fruitful

result.

7. Heard learned counsel for the parties as well as respondent-

wife, present in person, and perused the record of the case,

alongwith the judgments cited at the Bar.

8. Upon being put a pertinent query by this Court to the

learned counsel for the respondent-wife as well as the respondent-

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wife, who is present in person before this Court, as to whether

they are in favour of grant of prayers so made on behalf of the

petitioner in the present petition, a categorical answer was given

by both, that such prayers may be accepted, while allowing the

present petition, and accordingly, the petitioner may be allowed to

participate in the matrimonial proceedings through Video

Conferencing, and that, the prayer for waiver of the cooling period

for the second motion may also be accepted.

9. It is noted by this Court that the respondent-wife is an

educated lady (enrolled Advocate) and is aware of the whole

procedure of appearance through Video Conferencing, and thus,

has consciously taken a decision to let the issue be resolved, while

supporting the prayers made in this petition for permitting the

petitioner to appear through Video Conferencing as well as waiver

of the cooling period for the second motion.

10. This Court, while taking note of the peculiar factual matrix of

the present case, feels persuaded about the applicability of the

judgments cited at the Bar so as to accept the unopposed prayers

so made in the present petition.

11. Thus, in light of the aforesaid observations and the

judgments cited at the Bar, as also keeping in view the fact that

the prayers so made by the petitioner in this petition are being

supported in categorical terms by the respondent-wife (present in

person) and her learned counsel, the present petition is allowed,

while quashing and setting aside the impugned order dated

10.04.2023 passed by the learned Family Court no.1, Jodhpur.

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12. Thus, while directing the learned Family Court to allow the

petitioner to put his appearance in the matrimonial proceedings in

question through the Video Conferencing, the cooling period for

the second motion is waived off, and the parties are given liberty

to take appropriate legal recourse. The application under Section

13-B of the Hindu Marriage Act, 1955 shall be accordingly decided

by the learned Family Court, strictly in accordance with law.

13. All pending applications also stand disposed of.

(DR. PUSHPENDRA SINGH BHATI),J C-2-Sudheer/-

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