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2017 DIGILAW 2442 (RAJ)

Bhanwar Lal Yadav @ Vikas S/o Shri Harinarayan Yadav v. Sangeeta Yadav @ Chanda D/o Shri Chitarmal W/o Bhanwar Lal Yadav

2017-11-07

AJAY RASTOGI, DEEPAK MAHESHWARI

body2017
ORDER : 1. Instant misc. appeal is directed against order of the Ld. Family Court impugned dt.4-4-2016 rejecting the application filed by the appellant husband seeking decree of divorce u/S.13 of the Hindu Marriage Act, 1955 (“Act, 1955”). 2. The undisputed facts which has come on record & admitted by the parties as well present before the Court are that the appellant & respondent are husband & wife and their marriage was solemnized on 16-5-2010 in Village Manda Naya Baas, Tehsil Chomu, Vaya Kaladera, District Jaipur according to Hindu rites & rituals & from this matrimonial wedlock there is no issue and to their utter dismay they could pull on well their matrimonial relations and started living separately from 18-3-2011 in their respective parental homes and because of their strained matrimonial relations there was no co-habitation and their matrimonial relations practically has broken down and taking note thereof application came to be filed by the appellant-husband u/S.13 of the Act, 1955. The written statement was filed by the respondent wife and taking note of the pleadings on record the application seeking decree of divorce was rejected by the Ld. Family Court under judgment impugned dt.4-4-2016 which came to be challenged by the appellant-husband in the instant appeal. 3. After notices of the present appeal came to be served the respondent wife also represented by her counsel and the matter was sent for mediation with consent of the parties and in the course of mediation proceedings the parties have amicably resolved to dissolve their marriage by consent u/S.13B of the Act, 1955 on certain terms & conditions deduced in writing and terms of the compromise on which the parties have decided to dissolve their marriage by consent have been complied with by each of them and in addition to it a sum of Rs. 6,35,000/- was paid by the appellant as full & final satisfaction towards permanent alimony in the form of demand draft which has also been deposited and encashed in the saving bank account of the respondent wife. 4. 6,35,000/- was paid by the appellant as full & final satisfaction towards permanent alimony in the form of demand draft which has also been deposited and encashed in the saving bank account of the respondent wife. 4. As per the terms & conditions of the compromise arrived at between the parties during the course of mediation proceedings, a joint application has been filed u/S.13B of the Act, 1955 seeking decree of divorce by mutual consent duly signed by the parties & identified by their respective counsels on 25-10-2017 and thereafter further application has been filed u/S.13B(2) of the Act, 1955 for waiver of the statutory cooling period of six months and to grant decree of divorce on 2-11-2017 in view of judgment of the Apex Court in the case of Amardeep Singh v. Harveen Kaur decided on 12-9-2017 and we consider it appropriate to quote relevant paras-18 to 22 as under :— “18. 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 13B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(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 XXXIIA 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. 19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court. 21. 19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court. 21. Since we are of the view that the period mentioned in Section 13B(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. 22. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice. 23. The parties are now at liberty to move the concerned court for fresh consideration in the light of this order.” 5. The contents of the application have been read over to the parties by their respective counsel in Hindi, which they fully understood and consented with the request to act in terms of their joint application filed u/S.13B of the Hindu Marriage Act. 6. After having heard the parties and taking note of the submissions made which are recorded in the course of mediation proceedings and also what is being jointly stated by them in their joint application filed u/S.13B of the Act, we are satisfied that the parties have made all attempts to resolve their matrimonial discord through the process of mediation/conciliation but failed to reunite and this Court is also satisfied that there is no likelihood of any success in the said direction by any further orders and waiting period will prolong their agony and has made out a case for waiver of a statutory/cooling period of six months as mandated u/S.13B(2) of the Act, 1955 for seeking decree of divorce by consent. 7. At this stage the parties further agreed that either of them will not proceed with any of their application if any filed/pending before the appropriate competent forum & all other litigation arising from this marriage stands resolved. 8. 7. At this stage the parties further agreed that either of them will not proceed with any of their application if any filed/pending before the appropriate competent forum & all other litigation arising from this marriage stands resolved. 8. Accordingly, the application filed u/S.13B of the Act, 1955 is allowed and their marriage solemnized on 16-5-2010 with their consent stands dissolved. Registry may prepare a decree of divorce by consent as indicated above. The appeal in these terms stands disposed of. 9. After passing of the order today dissolving their marriage by consent u/S.13B of the Hindu Marriage Act, when we enquired from the respondent wife who is present in Court, it has been informed to us that out of Rs. 6,35,000/- which was deposited in her savings bank account, a sum of Rs. 2,00,000/- has been withdrawn by her family members & she is completely unaware as to why such a huge amount has been withdrawn from her savings bank account and it appears that if within short period the money has been withdrawn by her family members this possibility cannot be ruled out that she will be left with no penny in her hand in near future. 10. Sh. Achintaya Kaushik Adv., appearing on behalf of the respondent wife is directed to place before the Court the details & statement of the bank account of the respondent Smt. Sangeeta Yadav @ Chanda D/o Chitarmal, which as informed is in Oriental Bank of Commerce, Branch at Kaladera, Chomu. 11. The Manager of Oriental Bank of Commerce, Branch at Kaladera, Chomu, District Jaipur is directed not to release any further amount from her savings bank account until further orders. Copy of this order be sent to the Branch Manager, Oriental Bank of Commerce, Branch at Kaladera, Chomu for necessary compliance. 12. Office to list the case on 22-11-2017 at 2:00 PM.