Rajasthan High Court - Jodhpur
Saroj vs None (2023:Rj-Jd:32568) on 4 October, 2023
Bench: Pushpendra Singh Bhati
[2023:RJ-JD:32568]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15192/2023
1. Saroj W/o Praveen Das D/o Radhey Shyam, Aged About
21 Years, B/c Saad, R/o Kagnada, Sabdand, Tehsil Luni,
District Jodhpur.
2. Praveen Das S/o Durga Das, Aged About 29 Years, R/o
Village Nokhda, Tehsil Nokhda, District Barmer.
----Petitioners
Versus
None, None
----Respondent
For Petitioner(s) : Mr. Ramesh Siyag & Mr. Sanjay Raj
Pandit
For Respondent(s) :
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
04/10/2023
1. This writ petition under Article 226 of the Constitution of
India has been preferred claiming the following reliefs :-
"(i) That the order dated 13.09.2023 (Annex.3) where
learned Tribunal Family court No.1 Jodhpur Metro dismissed
the application for condone of waive of six months cooling
period under Section 13-B (2) of Hindu Marriage Act 1955,
being aggrieved with this order where both the parties
wanted to move on with this marriage and want to end this
marriage as soon as possible so that they can move ahead in
their life positively. Hence the order dated 13.09.2023
(Annex.3) must be quashed and set aside."
2. Learned counsel for the petitioners submits that the
marriage of the petitioners was solemnized with Hindu rites and
ritual on 22.05.2022. Learned counsel further submits that the
petitioners are living separately since 30.07.2022. Learned
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counsel also submits that the parties arrived at a joint settlement
to part ways as the marriage has irretrievably broken down.
3. Learned counsel for the petitioner submits that Hon'ble
Supreme Court in the case of Amardeep Singh Vs. Harveen
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. Learned counsel for the petitioners has therefore prayed that
the order impugned be set aside and the court below be directed
to condone or waive the statutory period specified under Section
13-B(2) of the Act of 1955.
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5. At this juncture, this Court considers it appropriate to
reproduce the relevant portion of the Judgment rendered in the
case of Smt. Nisha Yadav Vs. Sandeep Yadav (D.B. Civil
Misc. Appeal No.2505/2019) decided by the Division Bench of
this Hon'ble Court at Jaipur Bench on 09.07.2019, as hereunder:-
"Learned counsel for both the parties pray that after
waiving the cooling off period of six months, this court
may pass a decree of divorce on mutual consent keeping
in view the fact that their marriage has reached the stage
of irretrievable break down. In support of this
submission, learned counsel relied on the judgments of
the Supreme Court in Veena Vs. State Govt. of NCT,
Delhi & Anr., (2011) 14 SCC 614, Devinder Singh Narula
Vs. Meenakshi Nangia - (2012) 8 SCC 580, and
Amardeep Singh Vs. Harveen Kaur - (2017) 8 SCC 746.
In Amardeep Singh, supra, the Supreme Court laid
down that since the cooling off 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.
In view of the compromise arrived at between the
parties, we are persuaded to allow the appeal. The
appeal is accordingly allowed. The impugned order dated
9.5.2019 passed by the Family Court No.1, Jaipur is set
side. The cooling off period of six months is waived. The
marriage between appellant-wife and respondent-
husband is therefore dissolved by mutual consent with
immediate effect in terms of the compromise entered into
between the parties. They are now free to remarry. The
divorce petition no.3132/2019 filed by both the parties
under Section 13-B of the Hindu Marriage Act, 1955
before the Family Court No.1, Jaipur, is accordingly
allowed. Decree of divorce be prepared accordingly.".
6. After taking into consideration the facts of the present case,
this Court is the opinion that the conditions set out by the Hon'ble
Supreme Court in Amardeep Singh's case (supra) and Division
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Bench of this Hon'ble Court in Smt. Nisha Yadav (supra) are
fulfilled in the present case.
7. In light of the facts and circumstances of the case,
particularly the fact that the parties are aware of their rights and
have mutually decided to end their matrimony finding no
hope/chance of reconciliation, this Court is 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.
8. Hence, this writ petition is allowed. The impugned order
dated 13.09.2023 passed by the learned court below is set aside
and the application for waiver of the statutory period of six
months specified under Section 13-B(2) of the Act of 1955 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
extraordinary powers available to this Court by virtue of Article
226 of the Constitution of India.
9. The learned trial court is accordingly directed to proceed
strictly in accordance with law, while considering the cooling
period as waived off.
10. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
204-Sudheer/-
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