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2019 DIGILAW 2286 (RAJ)

Chandra Prabha v. Jaikishan Haslani

2019-08-26

ALOK SHARMA

body2019
ORDER : Alok Sharma, J. 1. Under challenge is the order dated 21.6.2019 whereby the Family Court No. 2, Jaipur Metropolitan has dismissed the joint application of the petitioner-wife (hereinafter 'wife') and the respondent-husband (hereinafter 'husband') for waiver of the six months period required under Section 13(B)(2) of the Hindu Marriage Act, 1955 (hereinafter 'the Act of 1955') for granting divorce by mutual consent. 2. Counsel for the wife submitted that her marriage with the husband were solemnized on 14.5.2014. No children were borne out of the wedlock. On 14.5.2017 the wife and the husband separated for varied reasons and never got back together or cohabited again. Counsel submitted that the wife has since on separation been staying with her parents at Jodhpur while the husband is residing at Jaipur. Counsel submitted that all attempts of settlement and co-habitation have failed including before the Family Court. 3. Counsel submitted that the petition before the Family Court under Section 13(B)(2) of the Act of 1955 was mutually filed on 27.5.2019 in view of no possibility of any reconciliation and cohabitation between the wife and husband. It was followed by an application for waiver of six months period under Section 13(B)(2) of the Act of 1955. That has been mechanically dismissed by the impugned order dated 21.6.2019. Hence this petition. 4. Mr. P.C. Dewanda for the wife relied upon the judgment of the Apex Court in the case of Amardeep Singh V. Harveen Kaur 2017 (8) SCC 746 where the issue of waiving the six months period provided for under Section 13(B)(2) of the Act of 1955 was considered. It was held by the Apex Court therein that the six months period under Section 13(B)(2) of the Act of 1955 was not mandatory but only directory. It could be waived if the circumstances of the case so warranted. Mr. P.C. Dewanda submitted that the husband and wife had been living separately for over three years when the application under Section 13(B)(2) of the Act of 1955 was filed. Prior thereto and even subsequent thereto before the Family Court all attempts at reconciliation have failed. He submitted that the issue of custody in the instant case is not relevant as no child was borne during the marriage of the parties. Prior thereto and even subsequent thereto before the Family Court all attempts at reconciliation have failed. He submitted that the issue of custody in the instant case is not relevant as no child was borne during the marriage of the parties. He submitted that no issue of alimony obtains as it has already been settled to mutual satisfaction and the requisite payments have been made by the husband to the wife. 5. Mr. Govind Sharma counsel for the husband has concurred with the submissions of Mr. P.C. Dewanda. 6. The Apex Court in para 18 of the case of Amardeep Singh v. Harveen Kaur (supra) held 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." 7. In the instant case the petitioner and the respondent have been married for over 5 years and living separately since 14.5.2017 i.e. over two years. The application for divorce by mutual consent under Section 13(B)(2) of the Act of 1955 was filed on 27.5.2019. All attempts at reconciliation between the wife and the husband have failed prior to the filing of the petition and subsequent to its filing before the Family Court. The conditions for waiver of the six months period under Section 13(B)(2) of the Act of 1955 as detailed by the Apex Court in Amardeep Singh v. Harveen Kaur (supra) obtain in the facts of the case. 8. The conditions for waiver of the six months period under Section 13(B)(2) of the Act of 1955 as detailed by the Apex Court in Amardeep Singh v. Harveen Kaur (supra) obtain in the facts of the case. 8. I am therefore of the considered view that it will be just and appropriate to allow this petition and quash and set aside the impugned order dated 21.6.2019. The Family Court No. 2, Jaipur Metropolitan is directed to decide the case No. 714/2019 and pass a decree accordingly. 9. The petition is accordingly allowed.