Rajasthan High Court - Jodhpur

Sandeep Sharma vs Smt. Anuradha Vaishnav ... on 12 October, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:34570]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 15988/2023

Sandeep Sharma S/o Late Shri Shivprakash Sharma, Aged About 39 Years, R/o 5 F 10 Kudi Bhagtasani Jodhpur.

----Petitioner Versus Smt. Anuradha Vaishnav W/o Sandeep Sharma, D/o Nirmal Prakash, Aged About 37 Years, R/o Balaji Colony, Tv Tower Road, Masuria, Jodhpur.

                                                                   ----Respondent


For Petitioner(s)            :    Mr. Shubham Modi
For Respondent(s)            :    Mr. Mahendra Singh Bhati

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

12/10/2023

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

of India has been preferred claiming the following reliefs :-

"(i) Allow the Writ petition preferred by the petitioner.

ii. Quash and set aside the impugned order dated 22.09.2023 passed by the Ld. Judge, Family Court No.3, Jodhpur (Annexure-3).

iii. That the settlement agreement executed by both the parties may kindly be taken on record. (Annexure.4). "

2. Learned counsel for the parties jointly submits that the

marriage of the petitioner and respondent was solemnized with

Hindu rites and ritual on 19.09.2013. Learned counsel further

submits that the petitioner and respondent are living separately

since May, 2018 and they have a child also. Learned counsel also

[2023:RJ-JD:34570] (2 of 4) [CW-15988/2023]

submits that the both the parties arrived at a joint settlement to

part ways as the marriage has irretrievably broken down.

3. Learned counsel for the parties 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 parties have therefore jointly 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.

[2023:RJ-JD:34570] (3 of 4) [CW-15988/2023]

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

[2023:RJ-JD:34570] (4 of 4) [CW-15988/2023]

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