Rajasthan High Court - Jodhpur
Smt. Rajni Sahu vs Prakash Chandra (2024:Rj-Jd:8313) on 16 February, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:8313]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2228/2024
Smt. Rajni Sahu D/o Shri Shishpal Wife Of Shri Prakash
Chandra, Aged About 27 Years, Resident Of Bhawan Desar,
Tehsil- Ratangarh, District- Churu. At Present Bidawatan, Tehsil-
Sardarsahar, District- Churu.
----Petitioner
Versus
Prakash Chandra S/o Shri Bhagirath Prasad, Aged About 30
Years, Resident Of Bhawan Desar, Tehsil-Ratangarh, District-
Churu.
----Respondent
For Petitioner(s) : Mr. K.R. Saharan
For Respondent(s) : Mr. Govind Suthar
HON'BLE DR. JUSTICE NUPUR BHATI
Order
16/02/2024
1. This writ petition under Article 226 of the Constitution of
India has been preferred claiming the following reliefs :-
"(i) by an appropriate writ order or direction, the
impugned order dated 29.01.2024 (Annex-3), passed by
the learned Additional District Judge, Sardarsahar,
District-Churu, in Family Misc. Case No.08/2024 titled
Smt. Rajni Sahu Vs. Prakash Chandra may kindly be
quashed and set aside;
(ii) by an appropriate writ order or direction, the
application (Annex-2) may kindly be allowed as prayed for
as statutory period of 6(six) months specified under
Section 13-B(2) of the Hindu Marriage Act, 1955 may
kindly be waived;
(iii) any other order which this Hon'ble Court may deem
fit, just and proper may also be passed in favour of the
petitioner."
2. Learned counsel for the parties jointly submit that the
marriage of the petitioner and respondent was solemnized as per
[2024:RJ-JD:8313] (2 of 4) [CW-2228/2024]
Hindu rites and ritual on 10.05.2022. Learned counsel further
submits that the petitioner and respondent are living separately
from August, 2022. Learned counsel also submits that the both
the parties arrived at a joint settlement to part their 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
[2024:RJ-JD:8313] (3 of 4) [CW-2228/2024]
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#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
[2024:RJ-JD:8313] (4 of 4) [CW-2228/2024]
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 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 29.01.2024 (Annexure-3) 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 petitioner as well as the respondent are directed to
appear before the learned trial court on 20.02.2024. 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. NUPUR BHATI),J
55-Devesh/ajayS/-
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