Rajasthan High Court - Jodhpur
Sumitra Bishnoi vs Mahesh Kumar (2023/Rjjd/017005) on 23 May, 2023
Bench: Pushpendra Singh Bhati
[2023/RJJD/017005]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7043/2023
Sumitra Bishnoi W/o Mahesh Kuanr D/o Faturam, Aged About 28
Years, R/o Plot No 38/26, Old Electrical Power House Nagori
Bera, Mandore, Jodhpur.
----Petitioner
Versus
Mahesh Kumar, Aged About 27 Years, B/c Bishnoi, R/o- Village
Jugwaniyo Ki Dhani, Palli, Tehsil Lohawat District Jodhpur.
----Respondent
For Petitioner(s) : Mr. Roshan Lal Diwakar
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
23/05/2023
1. This writ petition under Article 226 & 227 of the Constitution
of India has been preferred claiming the following reliefs:
"(I) By an appropriate writ, order or direction the application filed
by the petitioner (Annexure 2) may kindly be allowed and order
dated 11.05.23 (Annexure 4) may kindly be set aside and the
marriage of the petitioner may kindly be annulled by the decree of
divorce.
(ii) Any other appropriate order or direction, which this Hon'ble
Court consider just and proper in facts and circumstances of the
case may kindly be passed in favour of the petitioner.
(iii) Cost of the writ petition may kindly be allowed to the
petitioner."
2. Learned counsel for the petitioner submits that the marriage
of the petitioner and the respondent was solemnized with Hindu
rites and ritual on 08.06.2016, due to the said wedlock, the
petitioner gave birth to one daughter. He further submits that the
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[2023/RJJD/017005] (2 of 3) [CW-7043/2023]
parties are living separately since last two years. He also submits
that both the parties arrived at a joint settlement to part ways as
the marriage has irretrievably broken down.
3. Learned counsel for the petitioner has relied upon the
precedent law laid down by the Hon'ble Supreme Court in the case
of Amardeep Singh Vs. Harveen Kaur, reported in (2017) 8
SCC 746; wherein the Hon'ble Apex Court 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."
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[2023/RJJD/017005] (3 of 3) [CW-7043/2023]
4. Having regard to the peculiar facts and circumstances, more
particularly the fact that the parties are living separately from last
two years 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.
169-Zeeshan
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