Rajasthan High Court - Jodhpur

Amit Kumar vs Gagan Chaudhary on 21 August, 2025

[2025:RJ-JD:37046]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 8353/2025
Amit Kumar S/o Shri Surendra Singh, Aged About 28 Years,
Resident Of House No. 33, Anand Vihar, Ward No. 26, Jaipur
Road, Near Vishwa Bharti College, Sikar And Presently Residing
At House No. C-18, Ridhi Sidhi-Iii, Sriganganagar (Raj.).
                                                                     ----Petitioner
                                     Versus
1.       Gagan Chaudhary D/o Smt. Laxmi Devi, Wife Of Amit
         Kumar, Aged About 29 Years, Resident Of House No. 97,
         Bharatnagar, Sriganganagar (Raj.).
2.       Yuvraj S/o Shri Rajendra Bishnoi, Aged About 22 Years,
         Resident Of Ward No. 10, Raisinghnagar, District
         Sriganganagar (Raj.).
                                                                  ----Respondents


For Petitioner(s)            :   Mr. Himmat Jagga
                                 Ms. Tania Chugh
For Respondent(s)            :   Mr. M.K. Dudy


             HON'BLE MR. JUSTICE SUNIL BENIWAL

Order Reserved on : 14/08/2025 Pronounced on : 21/08/2025

1. The present writ petition has been filed with the following

prayers:-

"(i) record of the case may kindly be summoned;

(ii) The impugned order dated 04.04.2025 (Annexure-5) passed by the learned judge, Family Court No.2, Sriganganagar in Civil Misc. Case No.89/2025 titled Amit Kumar Vs. Gagan Chaudhary may kindly be quashed and set aside and application under Section 14 of the Act of 1955''

(iii) the learned Family Court No.2, Sriganganagar may kindly be directed to decide the petitioner under Section 13(1)(i) (ia) of the Act of 1955 on merits;"

2. The brief facts of the case are that the petitioner instituted a

petition under Section 13(1)(i)(ia) of the Hindu Marriage Act, 1955

(hereinafter referred to as 'the Act of 1955'), seeking dissolution

of marriage. It was stated that the marriage between the

petitioner and respondent No.1 was solemnized on 21.01.2025 in

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accordance with Hindu customs and rites. However, on the very

same day, i.e., 21.01.2025, respondent No.1 expressed her

unwillingness to live with the petitioner as she intended to marry

respondent No.2. It was further averred that on 15.02.2025,

respondent No.1 left her matrimonial home, pursuant to which a

missing person report was lodged by her mother on 21.02.2025.

Subsequently, respondent Nos.1 and 2 were traced, and

respondent No.1 executed an affidavit as well as a consent letter

categorically stating that she was not inclined to reside with the

petitioner and desired to live with respondent No.2.

2.1 During the pendency of the aforesaid proceedings, the

petitioner filed an application under Section 14 of the Act of 1955

on 17.03.2025, inter alia, contending that since both the

petitioner and respondent No.1 had no intention to continue the

marital relationship and differences had arisen on the very first

day of marriage, the statutory period of one year be waived.

2.2 The learned Family Court No.2, Sriganganagar, vide order

dated 04.04.2025, dismissed the said application holding that no

case of exceptional hardship was made out so as to justify waiver

of the mandatory one-year period.

Hence, this petition.

3. Though notices are yet to be issued to the respondents, but,

Mr. M.K. Dudy put in appearance on behalf of the respondent No.1

and submitted that he has received the instructions to appear in

the present writ petition and has no objection if the same is

allowed. Respondent No.2 is a formal party and, therefore, his

presence is not essential for deciding the present writ petition.

[2025:RJ-JD:37046] (3 of 7) [CW-8353/2025]

4. Heard learned counsel for the parties and perused the

material available on record.

5. By the impugned order, the learned Family Court has

rejected the application holding that there is no exceptional

hardship being highlighted in the application and, therefore, the

petitioner is having no case to seek waiver of the mandatory

period of one year as required under the law.

5.1 In the present case, it is noted that marriage was solemnized

on 21.01.2025 and the respondent No.1 expressed her willingness

not to stay with the petitioner on the very same day, i.e. on

21.01.2025 itself. Within a period of about 1½ months, she left

the petitioner's home and a missing person report was lodged by

the mother of the respondent No.1. She was later recovered along

with the respondent No.2. She executed an affidavit expressing

her clear intention that she was neither intended to stay with the

petitioner nor was she willing to continue her marriage with the

petitioner and that she wanted to live with the respondent No.2.

Even, the application filed by the petitioner under Section 14 of

the Act of 1955 was not contested on her behalf. Moreover, the

counsel appearing on behalf of the respondent No.1 submitted

that he has no objection if the present writ petition is allowed as

the petitioner and the respondent No.1 never had a cordial and

matrimonial relation and on account of such marriage, both the

parties are facing hardship.

5.2 A coordinate Bench of this Court, in the case of Pratap

Sisodia Vs. Surabhi Sisodia : S.B. Civil Writ petition

NO.15139/2018, decided on 27.08.2018, observed in para

No.11 as under:-

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"11. A look at the order impugned shows that the learned Additional District and Sessions Judge has rejected the application on the ground that there is no averment relating to the conditions provided under Section 14(2) of the Act of 1955 nor there is any averment relating to Section 13B of the Act of 1955 for getting the matter dissolved without waiting for the period provided therein. The petitioner and respondent, who are present in Court in person have pointed out that they both are educated and would suffer exceptional hardship if they are forced to live in marriage although they are separately living since 16/03/2018. The decision of the learned Court below to return the application moved under Section 13B of the Act of 1955 was not justified. While the judgments have been quoted, it appears that the learned court below has failed to take notice of the law laid down therein. The Delhi High Court in the case of Sh. Tarun Kumar Vaish vs. Ms. Meenakshi Vaish (supra) has taken into consideration the earlier judgment passed by the Court in the case of Pooja Gupta wherein following observations were made:-

"7. .........The above statement of objects and reasons though made in the context of parity with Section 28 of Special Marriage Act also clearly indicates that the legislative intent was expeditious disposal of divorces by mutual consent. In my view as long a the Court is satisfied as an essential reason for exemption for filing a divorce by mutual consent prior to expiry of one year after the marriage that the plea for mutual consent is not under coercion/intimidation or undue influence and there are no chances of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent, the continuance of such a marriage is bound to cause undue hardship to the spouses. The other relevant considerations which may be considered for granting the exemption from passage of one year before filing a petition for divorce by mutual consent are:-

(a) the maturity and the comprehension of the spouses;

(b) absence of coercion/intimidation/undue influence;

(c) the duration of the marriage sought to be dissolved;

(d) absence of any possibility of reconciliation;

(e) lack of frivolity;

(f) lack of misrepresentation or concealment

[2025:RJ-JD:37046] (5 of 7) [CW-8353/2025]

(g) the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties.

In view of the law laid down by the Apex Court as well as Delhi High Court in the judgments (supra), this Court too is of the view that the provisions of Section 13B of the Act of 1955 are not of mandatory in nature and are directory. The Court lays down certain provisions to safeguard the marriage. However, if the parties to the marriage have firmly resolved not to continue and have serious disputes which cannot be resolved by way of any conciliation, it would be unjust upon them if, to maintain the sanctity of the legal provisions, they are force to remain in marriage."

5.3 In another decision by a Division Bench of this Court

rendered in the case of Nitish Agarwal vs. Anchal Singhal :

D.B. Civil Miscellaneous Appeal No. 2933/2019; decided on

17.09.2019, observed in para No.28 as under:-

"28. Detailed and thorough examination of the precedents on this issue reveal that law in this regard has sufficiently developed that an application for grant of decree of divorce by mutual consent under Section 13B of the Act can be filed even before expiry of period of one year from the date of marriage, subject to leave of the Court by filing application under Section 14(1) of the Act. If the Court is satisfied that the case is one of "exceptional hardship to the petitioner" or of "exceptional depravity on the part of the respondent", it can grant such leave but the aforementioned proviso has given a rider that if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed."

5.4 It would also be appropriate to reproduce the observations

made by Allahabad High Court while deciding a first appeal being

First Appeal No.239 of 2015 (Smt. Alka Saxena v. Sri Pankaj

Saxena) decided on 24th October, 2024, which reads as under:-

[2025:RJ-JD:37046] (6 of 7) [CW-8353/2025]

"13. Clearly, the bar thus created is not on the entertainment of a petition within one year of the Hindu marriage. Rather, the bar arises on the presentation of a petition within one year of a marriage. Therefore, the statute prevents a party to a Hindu marriage to 'present' any petition to dissolve their marriage before any competent Court, within one year from the solemnization of their marriage. The upshot of the above discussion is that the bar operates against the cause of action arising to a party to a Hindu marriage within one year from solemnization of their marriage.

14. The exception to the above bar is contained in the proviso to Section 14 of the H.M.A. First that exception may be invoked only upon specific application being filed by a party seeking to dissolve a Hindu Marriage within one year of its solemnization.

Second, the bar may be lifted by passing an appropriate order, keeping in mind the statutory safeguards. Thus, it may 'allow' a petition to be presented within one year from the solemnization of a Hindu marriage. That may be done if the case involves `exceptional hardship' to the petitioner or it involves `exceptional depravity on the part of the Respondent'. That power once exercised has not been made absolute. The competent Court would retain its jurisdiction to provide that the decree of divorce, if passed, in such a case, may not be given effect until after expiry of one year from the date of the marriage or it may dismiss the petition (after allowing the presentation of such petition in exercise of power under the proviso of Section 14 (1) of the H.M.A), if it later reaches a conclusion that the permission was obtained by the petitioner on misrepresentation or concealment of the nature of the case. Further consideration is to be made by the competent Court while granting permission under the proviso to Section 14 (1) of the H.M.A. in terms of Section 14 (2) of the H.M.A. Thus, the competent Court would also have regard to the interest of children of marriage and reasonable probability of reconciliation.

15. Thus, the presentation of the petition within one year is not permitted under the Act by way of general law. In fact on a wholesome reading of the provision it reveals that cause of action to dissolve a Hindu marriage may not arise to a party thereto, within the first year of marriage, except in cases involving 'extreme hardship' or 'extreme depravity' suffered by the petitioner. Barring those two contingencies, no other exists. Even then, that cause of action is not available on its own. Its existence has to be claimed by the petitioner, by filing a specific application to the Competent Court and it has to be first established before that Court. Only upon that plea being accepted, such a petition may be entertained. Here, no application was filed or considered or allowed by the learned Court below, before entertaining the divorce petition filed by the

[2025:RJ-JD:37046] (7 of 7) [CW-8353/2025]

Respondent. For that reason, the ratio of the Madras High Court in Indumati v. Krishnamurthy is distinguishable as in that case an application made under the proviso to Section 14 (1) was allowed. In our opinion a divorce petition filed under H.M.A. within one year of marriage cannot be entertained unless the petitioner/s first file an application in terms of the proviso to Section 14 (1) and unless that application is first allowed."

6. In view of the facts and circumstances of the case, as

narrated above and in view of the precedent law as discussed

above, there is no possibility to continue the matrimonial ties

between the petitioner and the respondent No.1 as right from

inception, the marriage was never accepted by the respondent

No.1. Therefore, this Court is of the opinion that the present case

falls within the exceptional hardship and hence, the present writ

petition deserves to be allowed.

7. Resultantly, the writ petition is allowed. The impugned order

dated 04.04.2025 (Annexure-5), passed by the learned Family

Court, No.2, Sriganganagar is quashed and set aside and

consequently, the application filed by the petitioner under Section