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2019 DIGILAW 709 (RAJ)

Megha Sancheti v. Siddharth Sancheti

2019-03-01

SANJEEV PRAKASH SHARMA

body2019
JUDGMENT 1. Both husband and wife is present in the Court along with the counsels submit that the impugned order dated 16.01.2019 passed by the learned Judge, Family Court No. 1, Jodhpur be set aside, whereby he has refused to condone the six months period under Section 13B(2) of the Hindu Marriage Act which provides for six months time to be kept for chances of conciliation and restoration of relations between the couple. Learned counsel submits that both the applicants had moved the application under Section 13B(2) for seeking divorce on 03.01.2019 willingly and have been living separately from each other from 12.07.2017. They were married on 03.01.2012. 2. Keeping in view that they have been living separately for almost one and half year, the learned Judge ought to have allowed the application and ought not have been insisting for keeping the matter further pending for six months. Learned counsels rely upon the law laid down by the Apex Court in 2017 DNJ SC 859 (Amardeep Singh v. Harveen Kaur) wherein the Apex Court has 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 C.P.C./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". 3. Taking into consideration the submissions raised before this Court and also taking into consideration that both the parties present before this Court have requested this Court to allow their application under Section 13(B) and grant there mutual divorce and there are no chances for reconciliation and all the conditions mentioned above are fulfilled this Court sets aside the order dated 16.01.2019 and further directs the learned Judge, Family Court No. 1 to pass an appropriate decree under Section 13(B) without insisting on the period as provided in 13(B)(2). The learned Judge, Family Court shall accordingly passed an order within period of seven days from the date of submission of certified copy of this order. 4. Writ petition is allowed. No Costs.