Sheela Gurjar vs Debi Lal (2023/Rjjd/010750)
2023 Latest Caselaw 3231 Raj

Citation : 2023 Latest Caselaw 3231 Raj
Judgement Date : 19 April, 2023

Rajasthan High Court - Jodhpur

Sheela Gurjar vs Debi Lal (2023/Rjjd/010750) on 19 April, 2023

Bench: Pushpendra Singh Bhati, Praveer Bhatnagar

[2023/RJJD/010750] (1 of 4) [CMA-654/2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 654/2022

Sheela Gurjar W/o Shri Devi Lal Gurjar, Aged About 28 Years, D/
o Shriram Gurjar, R/o Jhardu Ka Khera, Tehsil Badnor, Presenlty
R/o Kaniya, Tehsil Hurda, Distt. Bhilwara, Raj.
----Appellant
Versus
Debi Lal S/o Shri Bheru Lal Gurjar, Aged About 31 Years, R/o
Jhardu Ka Khera, Tehsil Badnor, Distt. Bhilwara, Raj.
----Respondent

For Appellant(s) : Mr. Zafar Khan
For Respondent(s) : Mr. Saurabh Soni

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Order

19/04/2023
1. This civil misc. appeal has been preferred against the

judgment and decree dated 07.02.2022 passed by learned Family

Judge (Additional District and Session Judge), Gulabpura, District

Bhilwara in Civil Misc. Case No.46/2021 (CIS No.46/2021),

whereby the learned judge has dismissed the application filed by

the appellant under Section 13 of the Hindu Marriage Act.

2. Learned counsel for the parties jointly submit that the parties

have compromised the matrimonial matter.

3. Learned counsel for the parties jointly seek permission to file

fresh application under Section 13-B of the Hindu Marriage Act.

4. Learned counsel for the petitioner submits that the cooling

period, in the given factual matrix, deserves to be waived. In this

regard, learned counsel relied upon the judgment rendered by a

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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 :-
"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

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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
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. Consequently, in light of such joint submission and the

judgment cited at the Bar, the civil misc. appeal is allowed, while

quashing and setting aside the judgment and decree dated

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07.02.2022 passed by learned Family Judge (Additional District

and Session Judge), Gulabpura, District Bhilwara.

6. The parties shall be at liberty to move fresh application

under Section 13-B of the Hindu Marriage Act, which may be

decided by the learned Family Court, strictly in accordance with

law, without getting prejudiced of the impugned order. The cooling