Rajasthan High Court - Jodhpur
Akshaj Charan vs Akshita Charan ... on 8 May, 2023
Bench: Pushpendra Singh Bhati
[2023/RJJD/013949]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5226/2023
Akshaj Charan S/o Blalwantdan Charan, Aged About 34 Years,
1004/a, Shri Sai Tower, Sodawala Lane, Near P.f. Quarters,
Boriwali (West), Mumbai, Currently Residing At Jodhpur
----Petitioner
Versus
Akshita Charan W/o Akshaj Charan D/o Prakash Singh, Aged
About 25 Years, Plot No.4, Nayapura, Lalsagar, Behind Holi
Chowk, Jodhpur, Rajasthan.
----Respondent
For Petitioner(s) : Mr. Sachin Saraswat
Mr. Naresh Saraswat
For Respondent(s) : Mr. Gorav Thanvi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
08/05/2023
1. The petitioner has preferred the present writ petition
claiming the following reliefs :-
"It is, therefore, most respectfully prayed on behalf of
petitioner that the writ petition may kindly be allowed
and the direction may be given to the learned Family
Court No.1, Jodhpur Metropolitan to waive the cooling
period of six months in Application No.24/2023 preferred
by the parties."
2. Learned counsel for the parties jointly submit that the parties
are living separately since 2016. They further submit that both the
parties arrived at a joint settlement to part ways as the marriage
has irretrievably broken down.
3. Learned counsel for the parties further submits that Hon'ble
Supreme Court in the case of Amardeep Singh Vs. Harveen
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[2023/RJJD/013949] (2 of 3) [CW-5226/2023]
Kaur, reported in (2017) 8 SCC 746; has waived off the
cooling period for the second motion; relevant portion reads 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 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- (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."
4. Having regard to the peculiar facts and circumstances, more
particularly the fact that the parties are living separately since
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[2023/RJJD/013949] (3 of 3) [CW-5226/2023]
2016 and the marriage has irretrievable broken down, and while
following the judgment rendered in the case of Amardeep Singh
(supra), inclined to allow the present writ petition; the same is
hereby allowed; the cooling period for the second motion is
waived off.
5. The learned trial court is accordingly directed to proceed
strictly in accordance with law, while considering the cooling
period as waived off.
6. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
94-Sudheer/-
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