Ram Kumar vs None (2023:Rj-Jd:27608)
2023 Latest Caselaw 6716 Raj

Citation : 2023 Latest Caselaw 6716 Raj
Judgement Date : 2 September, 2023

Rajasthan High Court - Jodhpur

Ram Kumar vs None (2023:Rj-Jd:27608) on 2 September, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:27608]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12955/2023

1. Ram Kumar S/o Sh. Bhagirath, Aged About 39 Years, R/o
Village Karadwala, Tehsil Sadulshahar, District
Sriganganagar (Raj.).
2. Sulochna W/o Sh. Ram Kumar S/o Sh. Bhagirath, Aged
About 37 Years, R/o Village Karadwala, Tehsil
Sadulshahar, District Sriganganagar, At Present R/o
Village 9-Q, Tehsil And District Sriganganagar (Raj.).
----Petitioners
Versus
None, None
----Respondent

For Petitioner(s) : Mr. HS Sidhu.
For Respondent(s) :

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

02/09/2023

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

India has been preferred claiming the following reliefs :-

"A. By an appropriate writ, order or direction the learned
Family Court No.2, Sriganganagar may kindly be directed to
decide the application (annex-p/3) of the petitioners waiving
the cooling off period of 6 months, as prescribed under
Section 13B of the Act, 1955 and pass a divorce decree.

B. By an appropriate writ, order or direction, the impugned
order dated 17.08.2023 (p/4) so far as fixing the date upon
application to waive the cooling off period of 6 months, on
30.10.2023 to that extent may kindly be quashed and set
aside.

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C. By an appropriate writ, order or direction, the application
filed by the petitioners dated 17.08.2023 (P/3) may kindly be
allowed."

2. Learned counsel for the petitioners submits that the

marriage of the petitioners was solemnized with Hindu rites and

ritual on 24.11.2010 and a child has been born out of the said

wedlock. Learned counsel further submits that the petitioners are

living separately from each other for more than one year. Learned

counsel also submits petitioners arrived at a joint settlement to

part ways as the marriage has irretrievably broken down.

3. Learned counsel for the petitioners 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.

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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 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.

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-

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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 Smt. Nisha Yadav (supra) & Amardeep Singh's

case (supra) are fulfilled in the present case.

7. In light of the facts and circumstances of the case,

particularly the fact that the petitioners 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