Rajasthan High Court - Jodhpur
Sapna Kansara vs Vikram Kumar Kansara ... on 7 August, 2023
Bench: Rekha Borana
[2023:RJ-JD:21999]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 8911/2023
Sapana Kansara W/o Shri Vikram Kumar Kansara, Aged About 33
Years, B/c Kansara, R/o Maa Kripa Uprla Bas, Hathiram Ka Oda,
Jodhpur (Raj.).
----Petitioner
Versus
Vikram Kumar Kansara S/o Dilip Kumar Kansara, Aged About 34
Years, B/c Kansara, R/o Opposite IOC Colony, Bali, District Pali
(Raj.).
----Respondent
For Petitioner(s) : Ms. Priyanka Borana
For Respondent(s) : Mr. Darshan Jain
HON'BLE MS. JUSTICE REKHA BORANA
Order
07/08/2023
1. The present writ petition has been preferred against the
order dated 27.06.2023 passed by the Family Court No.2, Jodhpur
whereby the application under Section 151 of the Code of Civil
Procedure as preferred by the parties for waiving the cooling
period of six months, has been rejected.
2. Learned counsel for the petitioner submitted that in the
present matter, the parties started to live separately just after a
month of their marriage and an application under Section 13-B of
the Hindu Marriage Act, 1955 was preferred on 18.05.2023. Soon
after filing of the said application, the application for waiving of
the cooling period of six months was preferred which has been
rejected by the learned Family Court on total wrong premise.
Counsel submitted that in the present matter, there are no
[2023:RJ-JD:21999] (2 of 3) [CW-8911/2023]
chances of the parties living together and it was only by mutual
consent that they had preferred the divorce petition, therefore,
the cooling period ought to have been waived. In support of her
submission, counsel relied upon the judgment of Hon'ble Apex
Court in the case of Amardeep Singh vs. Harveen Kaur, AIR
2017 SC 4417.
3. A perusal of the order impugned shows that the learned
Family Court has specifically observed that the mandatory
provisions for conciliation in terms of Section 23(2) of the Hindu
Marriage Act, 1955 and Section 9 of the Family Courts Act, 1984
have not been complied with in the present matter. The Court also
observed that second motion and conciliation in the present
matter was still due and therefore, the cooling period of six
months could not be waived.
4. In Amardeep Singh's case (supra), the Hon'ble Apex Court
held that before arriving to a conclusion whether the cooling
period of six months can be waived, the Court should consider the
following questions:
(i) How long parties have been married?
(ii) How long litigation is pending?
(iii) How long they have been staying apart?
(iv) Are there any other proceedings between the parties?
(v) Have the parties attended mediation/conciliation?
(vi) Have the parties arrived at genuine settlement which
takes care of alimony, custody of child or any other
pending issues between the parties?
5. The Court further specifically held that the Court, while
waiving of the cooling period, must be satisfied that the parties
[2023:RJ-JD:21999] (3 of 3) [CW-8911/2023]
are living separately for more than the statutory period and all
efforts of mediation and reconciliation have been tried and have
failed and there is no chance of reconciliation and further waiting
period will only prolong their agony.
6. Coming to the present matter, it is admitted on record that
firstly, the statutory period has not been completed and
secondly, no mediation or conciliation proceedings had been
undertaken so that the Court could arrive to a conclusion that
there were no chances of reconciliation.
7. In view of the above, this Court does not find any ground to
interfere with the order impugned.
8. At this stage, both the learned counsels agree that the
parties would appear before the Family Court on 16.08.2023 and
on that date, the Court may refer them to mediation.
9. In view of the submission made, if the parties appear before
the Family Court on 16.08.2023, the learned Court may proceed
on to refer the parties to mediation/conciliation with immediate
effect and proceed further in accordance with law.
10. With these observations, the present writ petition is
disposed of.
11. The stay petition as well as all the pending applications also
stand disposed of.
(REKHA BORANA),J
19-Sachin/-
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