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2017 DIGILAW 2252 (RAJ)

Bhawna v. Mrityunjaya

2017-10-26

VIJAY BISHNOI

body2017
JUDGMENT : Vijay Bishnoi, J. 1. This writ petition has been preferred on behalf of the petitioner, who is a qualified doctor practicing in dentistry, being aggrieved with the order dated 9.10.2017 passed by the Addl. Sessions Judge No. 1, Nagaur (for short ‘the court below’) in Hindu Marriage Case No. 82/2017, whereby the joint application filed by the petitioner and the respondent for waiver of six months period as prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 (for short ‘the Act of 1955’) has been dismissed. Learned counsel Mr. Sanjay Mathur has put in appearance on behalf of the respondent and has submitted that the respondent is also aggrieved with the order impugned and the petitioner has filed this writ petition with the consent of the respondent. Mr. Mathur has submitted that he has no objection if the relief prayed for in this writ petition is granted. Brief facts of the case are that the marriage of the petitioner and the respondent was solemnized as per Hindu customs on 18.2.2014 in Nagaur City. As observed earlier, the petitioner is a qualified doctor practicing in dentistry, however, the respondent is a member of Indian Accounts Service and at present working in New Delhi. It appears that soon after the marriage, the relations of the petitioner and the respondent became strained and both of them are residing separately from about more than one year and eight months. Despite regular counselling by the near relatives of the petitioner and the respondent and despite best efforts by the parties, the matrimonial dispute between them could not be settled and therefore the petitioner and the respondent have jointly filed application under Section 13-B of the Act of 1955 seeking divorce by mutual consent before the court below on 4.9.2017. 2. The court below has registered the said application on 5.9.2017 and fixed the next date in the case as 7.3.2018 for the purpose of counselling of the parties. 3. In the meantime, on 5.10.2017, a joint application has been preferred on behalf of the petitioner and the respondent with a prayer for waiving six months' statutory period as specified under Section 13-B(2) of the Act of 1955. Arguments on the said application were heard and the court below has dismissed the said application vide order dated 9.10.2017. 4. 3. In the meantime, on 5.10.2017, a joint application has been preferred on behalf of the petitioner and the respondent with a prayer for waiving six months' statutory period as specified under Section 13-B(2) of the Act of 1955. Arguments on the said application were heard and the court below has dismissed the said application vide order dated 9.10.2017. 4. The judgment of the Hon'ble Supreme Court rendered in the case of Amardeep Singh vs. Harveen Kaur, (2017) 8 SCC 746 was placed before the court below, however, the court below has observed that as the facts of Amardeep Singh's case (supra) are different from the facts of the present case and no extra ordinary situation exists in the present case, therefore, the application seeking waiver of six months' statutory period as specified under Section 13-B(2) of the Act of 1955 cannot be granted. Being aggrieved with this, the present writ petition has been preferred before this Court. 5. Learned counsel for the parties have submitted that the petitioner as well as the respondent are highly educated persons and both of them have decided to end their marriage by mutual consent after due deliberations. It is also submitted that the decision by the parties to end their marriage has not been taken in hurry and there are no chances of reconciliation between the parties. It is submitted that the conditions under which statutory period of six months, as specified under Section 13-B(2) of the Act of 1955, can be waived as set out by the Hon'ble Supreme Court in Amardeep Singh's case (supra) are fulfilled in the present matter and the court below has illegally refused to waive the six months' statutory period. Both the counsel for the parties have therefore prayed that the order impugned be set aside and the court below be directed to waive the statutory period as specified under Section 13-B(2) of the Act of 1955 and the joint application preferred by the parties under Section 13-B of the Act of 1955 be decided expeditiously. Heard learned counsel for the parties and perused the impugned order. 6. The Hon'ble Supreme Court in Amardeep Singh's case (supra) has held as under:- “19. Heard learned counsel for the parties and perused the impugned order. 6. The Hon'ble Supreme Court in Amardeep Singh's case (supra) has held 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-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.” After taking into consideration the facts of the present case, I am of the opinion that the conditions set out by the Hon'ble Supreme Court in above referred case are fulfilled. 7. Taking into consideration the overall facts and circumstances of the case, particularly the fact that the petitioner and the respondent are highly educated persons and have mutually decided to end their marriage as there are no chances of reconciliation between them, I am of the opinion that the court below has wrongly rejected the application filed by the parties for waiving of the statutory period of six months as specified under Section 13-B(2) of the Act of 1955. 8. Hence, this writ petition is allowed. 8. Hence, this writ petition is allowed. The impugned order dated 9.10.2017 passed by the court below is set aside. The court below is directed to waive the statutory period of six months as specified under Section 13-B(2) of the Act of 1955 and decide the application filed by the parties under Section 13-B of the Act of 1955 expeditiously. 9. The parties are directed to appear before the court below on 6th November, 2017.