Tarun Choudhary vs Non (2023:Rj-Jd:25586-Db)
2023 Latest Caselaw 5756 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Misc. Appeal No. 889/2023

1. Tarun Choudhary S/o Shri Arun Kumar Choudhary, Aged About 30 Years, Resident Of Shekpuri Bhola Road, Jani Kalyanpur, Meerut (Up) 250502

2. Smt. Mudita Gaur W/o Shri Tarun Choudhary, Aged About 32 Years, D/o Shri Naresh Kumar Gaur, Resident Of 9Th, Indian Vidhyalaya Jhanwar Road, Near Dali Bai Mandir, Jodhpur (Raj.)

----Appellants Versus None

----Respondent

For Appellant(s) : Mr. D.N. Yadav.

Mr. Sanjeet Purohit, Amicus Curiae.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order

Reportable

10/08/2023

1. This appeal under Section 19 of the Family Courts Act, 1984

is directed against the order dated 29.04.2023 passed by the

Family Court No.3, Jodhpur, whereby the application filed by the

appellants seeking dispensing with the period prescribed under

Section 13B(2) of the Hindu Marriage Act, 1955 ('the Act') has

been rejected.

2. The appellants filed a joint application under Section 13B of

the Act before the Family Court No.1, Jodhpur on 17.04.2023

seeking divorce on mutual consent and on 24.04.2023, after

mediation with the parties the case was registered and for the

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purpose of second motion as prescribed under Section 13B(2) of

the Act and evidence, the next date fixed in the matter was

19.10.2023. Whereafter, the matter was transferred from the

Family Court No.1, Jodhpur to Family Court No.3, Jodhpur and

again matter was fixed on 19.10.2023. On 28.04.2023, the

appellants filed an application seeking dispensing with the

requirement of six months' period as prescribed under Section

13B(2) of the Act and dissolve the marriage solemnized by the

parties on 08.03.2019.

3. The application was filed with the submissions that the wife

was working as Transport Admn. at Dubai and she has a Visa for

the period 03.02.2023 to 02.02.2025 and has received a mail on

25.02.2023, whereby she has to report back by 01.05.2023 else,

she may loose her job. The husband, who is appearing from

Merrut (Uttar Pradesh), has no objection and there is no dispute

pending between the parties. Along with the application, the

documents supporting the plea were filed.

4. The Family Court made reference to the judgment of Hon'ble

Supreme Court in Amardeep Singh v. Harveen Kaur : (2017) 8

SCC 746 and came to the conclusion that the efforts for mediation

/ conciliation as envisaged under the said judgment, have not

been made and it cannot be said that there are no possibilities of

reunion between the parties and holding of the mediation /

conciliation between the parties is justified and consequently,

rejected the application and fixed the matter on 19.10.2023, the

date already fixed.

5. Both the parties have filed the present appeal questioning

the validity of order passed by the Family Court refusing to grant

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the relief of dispensing with the requirement of the cooling off

period of six months and has sought passing of an order granting

divorce by mutation consent in terms of the compromise and the

petition filed by the appellants and dissolve the marriage.

6. As both the parties had filed the appeal, there was none to

oppose the appeal.

7. On 06.07.2023, a Co-ordinate Bench called upon Mr. Sanjeet

Purohit, learned counsel to assist the Court as Amicus Curiae on

the aspect with regard to legal issues arising in the appeal with

reference to the Constitution Bench judgment of the Hon'ble

Supreme Court in Shilpa Sailesh v. Varun Sreenivasan : Transfer

Petition (Civil) No.1118/2014, decided on 01.05.2023 relatable to

the question and jurisdiction of the trial court to waive the

statutory period of six months as provided under Section 13B(2)

of the Act.

8. Today, learned counsel for the appellants and learned Amicus

Curiae have made detailed submissions in relation to the

Constitution Bench judgment in the case of Shilpa Sailesh (supra)

as well as law with regard to waiver of the statutory period

prescribed under Section 13B(2) of the Act.

9. It was submitted by learned Amicus Curiae that the

judgment in the case of Shilpa Sailesh (supra), essentially deals

with the power and jurisdiction of the Hon'ble Supreme Court

under Article 142(1) of the Constitution of India, while hearing a

transfer petition or in any other proceedings, in dispensing with

the period and the procedure prescribed under Section 13B of the

Act and quash other connected proceedings between the parties.

The Court was further dealing with the issue of grant of divorce in

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exercise of power under Article 142(1) of the Constitution of India

when there is complete and irretrievable breakdown of marriage

inspite of the other spouse opposing the prayer.

10. It was submitted that though the determination as made by

the Hon'ble Supreme Court in the case of Shilpa Sailesh (supra) as

such would have no application to the present case, inasmuch as,

this Court does not have the powers as are available under Article

142 of the Constitution of India and as the present matter arises

in a proceedings initiated by the parties under Section 13B of the

Act before the Family Court, whereas the Hon'ble Supreme Court

was considering exercise of powers under Section 13B of the Act

in a transfer petition pending before it.

11. However, it was submitted that while considering the issues,

which arose before the Constitution Bench, the Court has made

reference to the judgment in the case of Amardeep Singh (supra)

and Amit Kumar v. Suman Beniwal : 2021 SCC OnLine SC 1270,

which has dealt with the power of the Family Court to dispense

with the period as required under Section 13B(2) of the Act and

has observed that the power by the Hon'ble Supreme Court under

Article 142(1) of the Constitution of India should be exercised with

care and caution, keeping in mind the factors stated in Amardeep

Singh (supra) and therefore, apparently, the ratio / directions in

the case of Amardeep Singh (supra) and Amit Kumar (supra) have

been approved by the Constitution Bench and consequently, the

Family Courts need to be guided by the factors / principles as laid

down in the case of Amardeep Singh (supra) and Amit Kumar

(supra).

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12. Learned counsel for the appellants Mr. Yadav made

submissions that judgment in the case of Amardeep Singh (supra)

was cited and was referred to by the Family Court, however, the

spirit of the said judgment / directions have not been followed,

inasmuch as, the matter has been again adjourned to 19.10.2023,

the date already fixed i.e. a gap of six months from the date of

filing the application under Section 13B of the Act, which is not

justified and therefore, the order impugned deserves to be set-

aside.

13. We have considered the submissions made by learned

Amicus Curiae and learned counsel for the appellants.

14. As already observed, the Family Court has referred to the

requirements as indicated in the case of Amardeep Singh (supra)

and found that one of the conditions have not been fulfilled and

therefore, rejected the application. As after the judgment of the

Family Court on 29.04.2023, the judgment in the case of Shilpa

Sailesh (supra) was delivered by the Constitution Bench on

01.05.2023, a Co-ordinate bench required the learned Amicus

Curiae to assist the Court on the question of jurisdiction of the

trial court to waive the statutory period of six months as has been

provided in Section 13B(2) of the Act.

15. With the assistance of learned counsel for the parties, we

have thoroughly scanned the judgment in the case of Shilpa

Sailesh (supra), wherein the Hon'ble Supreme Court was primarily

concerned with exercise of its power under Article 142(1) of the

Constitution of India and more importantly, whether while hearing

a transfer petition requirements of provisions of Section 13B of the

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Act could be dispensed with and the connected proceedings

between the parties can be quashed.

16. After thoroughly examining the issue, the Hon'ble Court

came to the following conclusion :-

"Conclusion.

5. In view of the aforesaid discussion, we decide this reference by answering the questions framed in the following manner :

(i) The scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India.

This question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered in terms of paragraphs 8 to 13, inter alia, holding that this Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. While deciding whether to exercise discretion, this Court must consider the substantive provisions as enacted and not ignore the same, albeit this Court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a 'cause or matter'.

(ii) In view of, and depending upon the findings of this bench on the first question, whether this Court, while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash and dispose of other/connected proceedings under the Domestic Violence Act, Section 125 of the Cr.P.C., or criminal prosecution primarily under Section 498-A other provisions of the I.P.C. If the answer to this question is in the affirmative, in which cases and under what circumstances should this Court exercise jurisdiction under Article 142 of the Constitution of India is an ancillary issue to be decided.

In view of our findings on the first question, this question has to be answered in the affirmative, inter alia, holding that this Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.

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(iii) Whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?

This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do 'complete justice' to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed."

17. From the above, it would be seen that the Hon'ble Supreme

Court delineated the contours of its powers and jurisdiction under

Article 142(1) of the Constitution of India and answered the

question pertaining to its power under Article 142(1) of the

Constitution of India while dealing with a transfer petition exericse

of its power dispensing with the period and procedure prescribed

under Section 13B of the Act and to quash the proceedings.

However, the Court observed that the power should be exercised

with care and caution, keeping in mind the factors stated in

Amardeep Singh (supra) and Amit Kumar (supra).

18. While dealing with the second issue, the Court referred to

the judgment in the case of Amardeep Singh (supra) and Amit

Kumar (supra) as well as various other judgments dealing with the

aspect of dispensing with the requirements of Section 13B(2) of

the Act and as noticed came to the conclusion that the factors /

procedure as indicated in the said judgments needs to be

followed.

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19. The sum and substance of the above determination is that

the Constitution Bench has approved the judgments in the case of

Amardeep Singh (supra) and Amit Kumar (supra).

20. In the case of Amardeep Singh (supra), the Hon'ble Supreme

Court while specifically dealing with the question "whether the

minimum period of six months stipulated under Section 13B(2) of

the Act for a motion for passing decree of divorce on the basis of

mutual consent is mandatory or can be relaxed in any exceptional

situations ?", came to the following conclusion :-

"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 13B(2), in addition to the statutory period of one year under Section 13B(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 / Sect5ion 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.

21. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice."

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21. The determination made is categoric, wherein it has been

laid down that if the Court dealing with the matter is satisfied that

the case is made out to waive the statutory period it can do so

after considering the factors indicated in the order.

22. When the above judgment in the case of Amardeep Singh

(supra) was cited in the case of Amit Kumar (supra), the Hon'ble

Supreme Court observed as under :-

"21. The factors mentioned in Amardeep Singh v. Harveen Kaur (supra), in Paragraph 19 are illustrative and not exhaustive. These are factors which the Court is obliged to take note of. If all the four conditions mentioned above are fulfilled, the Court would necessarily have to exercise its discretion to waive the statutory waiting period under Section 13B(2) of the Marriage Act.

22. The Family Court, as well as the High Court, have misconstrued the judgment of this Court in Amardeep Singh v. Harveen Kaur (supra) and proceeded on the basis that this Court has held that the conditions specified in paragraph 19 of the said judgment, quoted hereinabove, are mandatory and that the statutory waiting period of six months under Section 13B(2) can only be waived if all the aforesaid conditions are fulfilled, including, in particular, the condition of separation of at least one and half year before making the motion for decree of divorce.

23. It is well settled that a judgment is a precedent for the issue of law that is raised and decided. A judgment is not to be read in the manner of a statute and construed with pedantic rigidity. In Amardeep Singh v. Harveen Kaur (supra), this Court held that the statutory waiting period of at least six months mentioned in Section 13B(2) of the Hindu Marriage Act was not mandatory but directory and that it would be open to the Court to exercise its discretion to waive the requirement of Section 13B(2), having regard to the facts and circumstances of the case, if there was no possibility of reconciliation between the spouses, and the waiting period would serve no purpose except to prolong their agony."

23. Whereafter, it observed / laid down as under :-

"27. For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for

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divorce under Section 13B(2) of the Hindu Marriage Act, the Court would consider the following amongst other factors:-

(i) the length of time for which the parties had been married;

(ii) how long the parties had stayed together as husband and wife;

(iii) the length of time the parties had been staying apart;

(iv) the length of time for which the litigation had been pending;

(v) whether there were any other proceedings between the parties;

(vi) whether there was any possibility of reconciliation;

(vii) whether there were any children born out of the wedlock;

(viii) whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc."

24. As noticed herein-before, the Constitution Bench has

required passing of the order dispensing with the requirements of

Section 13B of the Act while exercising powers under Article 142

of the Constitution of India keeping in view the factors indicated in

the case of Amardeep Singh (supra) and Amit Kumar (supra), as a

necessary corollary, the Family Court exercising powers under the

Family Courts Act and this Court are also required to follow the

dictum as laid down in the case of Amardeep Singh (supra) and

Amit Kumar (supra) while dealing with the cases requiring the

waiving of the statutory period as prescribed under Section 13B(2)

of the Act.

25. Coming to the case in hand, the Family Court rejected the

application by observing that all the efforts for mediation /

conciliation to reunite the parties have not been made and

therefore, the finding as required by judgment in the case of

Amardeep Singh (supra) cannot be recorded before holding such

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conciliation and went on to reject the prayer for dispensing with

the statutory period under Section 13B(2) of the Act and posted

back the matter again to 19.10.2023.

26. The said action on part of the Family Court is essentially too

pendantic, wherein the Court has ignored that on 24.04.2023 i.e.

after the proceedings under Section 13B of the Act were filed on

20.04.2023, counseling had taken place between the parties,

whereafter the proceedings were registered by the Court by way

of first motion and next date fixed was 24.10.2023.

27. Besides the above, if the Family Court was of the opinion

that under the factors indicated by the judgment in the case of

Amardeep Singh (supra), the Court was required to make all

efforts for mediation / conciliation including efforts in terms of

Order XXXIIA, Rule 3 CPC / Section 23(2) of the Act / Section 9 of

the Family Courts Act to reunite the parties, the said action / effort

should have been made by the Court immediately, while keeping

the application pending. The rejection of application by simply

observing that the condition has not been fulfilled, is essentially

abdication of the duty by the Family Court as prescribed under the

Act and the indications made in the case of Amardeep Singh

(supra), wherein the Hon'ble Supreme Court has clearly observed

that if the parties have genuinely settled their differences, as the

waiting period will only prolong their agony, the period should be

dispensed with, which factors were clearly reflected from the

application made seeking dispensing with the requirement of the

statutory period under Section 13B of the Act and as such, the

rejection of the application cannot be sustained.

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28. In view of the above discussion, the appeal is allowed. The

order dated 29.04.2023 passed by the Family Court No.3, Jodhpur

is quashed and set-aside. The matter is remanded back to the

said Court for deciding the application filed by the appellants

afresh.

29. The parties shall appear before the Family Court on

21.08.2023. On which date, it is expected of the Family Court to

re-decide the application expeditiously keeping in view the above

observations and the factors indicated in the case of Amardeep

Singh (supra) and Amit Kumar (supra).

30. Before we end, we place on record our deep appreciation for

the exhaustive and meticulous assistance provided by Mr. Sanjeet

Purohit, learned Amicus Curiae.

(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J 3-Rmathur/-

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