Yashwant Singh @ Manish vs Smt Shravani Kanmar ...
2023 Latest Caselaw 4607 Raj

[2023/RJJD/015328]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6775/2023

Yashwant Singh @ Manish S/o Premsingh, Aged About 30 Years, R/o Pokhran, District Jaisalmer At Present Resident Of Bjs Colony, Mohan Nagar, Sector A, Street No. 3, Near Mataji Mandir, Jodhpur.

----Petitioner Versus Smt Shravani Kanwar W/o Yashwant Singh @ Manish D/o Sh. Umardan, Aged About 40 Years, R/o Gundisar, Tehsil Degana, District Nagaur.

                                                                 ----Respondent


For Petitioner(s)         :     Ms. Swati Shekhar
For Respondent(s)         :     Mr. Gopal Sandu

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

15/05/2023

1. This writ petition under Article 226 & 227 of the Constitution

of India has been preferred claiming the following reliefs:

"i. the impugned order dated 02.05.2023 (Annex.4) may kindly be ordered to be quashed and set aside. ii. the learned Family Court, Jodhpur Metro may kindly be directed to fix the date of second motion after ten days and pass the appropriate divorce decree in favour of petitioner. iii. Any other order or direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the present case may kindly be passed in favour of the petitioner."

2. Learned counsel for the petitioner 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

[2023/RJJD/015328] (2 of 5) [CW-6775/2023]

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 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."

[2023/RJJD/015328] (3 of 5) [CW-6775/2023]

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. "

3. The respondent-wife represented by 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.

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

all necessary efforts, including three rounds of mediation before

learned Mediator(s), Mediation Centre at trial court as well as this

Hon'ble Court, have been made, but the same could not yield any

fruitful result.

[2023/RJJD/015328] (4 of 5) [CW-6775/2023]

5. Heard learned counsel for the parties as well as perused the

record of the case, alongwith the judgments cited at the Bar.

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

learned counsel for the respondent-wife 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.

7. It is noted by this Court that the respondent-wife has

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

supporting the prayers made in this petition for waiver of the

cooling period for the second motion.

8. 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.

9. 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 counsel for the respondent-

wife, the present petition is allowed, while quashing and setting

aside the impugned order dated 02.05.2023 passed by the learned

Family Court no.3, Jodhpur.

[2023/RJJD/015328] (5 of 5) [CW-6775/2023]

10. Thus, while directing the learned Family Court, 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.

11. All pending applications also stand disposed of.

(DR. PUSHPENDRA SINGH BHATI),J Zeeshan

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