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2022 DIGILAW 425 (RAJ)

Monika Khatik W/o Mahendra Kumar v. Mahendra Kumar S/o Gautam Chand

2022-02-09

DINESH MEHTA

body2022
JUDGMENT : DINESH MEHTA, J. 1. Instant writ petition lays challenge to an order dated 06.01.2022 passed by the Judge, Family Court, Gulabpura whereby the petitioner's application dated 18.12.2021 for waiver of cooling off period for deciding the application for mutual divorce filed under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act of 1955’) has been rejected. 2. The facts germane to the present petition are that the petitioner married the respondent when she was a minor. After attaining majority, the petitioner's matrimonial relation with the respondent got strained due to which she filed an application for dissolution of marriage under Section 13 of the Act of 1955 on 21.11.2020. 3. The petitioner's application under Section 13 of the Act of 1955 was rejected by the trial Court, vide its order dated 02.12.2021 inter-alia observing that the petitioner was deserted on 28.11.2019 and by the time of filing the petition, the two year's statutory period given under Section 13(1)(ib) had not elapsed. 4. After some time, as the matrimonial relations between the petitioner and the respondent did not improve, they jointly filed a petition seeking dissolution of the marriage with mutual consent under Section 13B of the Act of 1955 on 06.12.2021. 5. Along with the petition so filed, an application dated 18.12.2021 for waiving of the cooling off period of six months was also filed. The application for waiving of the cooling off period has been rejected by the Court below vide order dated 06.01.2022 inter-alia observing that the petitioner is seeking dissolution of marriage only with an intention to obtain Government service. 6. The learned Judge, Family Court has made an observation that in view of various judgments of High Court and Hon'ble the Supreme Court, there is no requirement of dispensing with the statutory period of 6 months. 7. This Court deems it appropriate to reproduce the reasons ascribed by the Family Court for rejecting the application. 6. The learned Judge, Family Court has made an observation that in view of various judgments of High Court and Hon'ble the Supreme Court, there is no requirement of dispensing with the statutory period of 6 months. 7. This Court deems it appropriate to reproduce the reasons ascribed by the Family Court for rejecting the application. The same reads as under: ^^mDr ifjfLFkfr;ksa esa gh /kkjk 13&ch fgUnw fookg vf/kfu;e ds rgr fookg&foPNsn dh fMØh ds fy, 06 ekg of.kZr vof/k dk vfHkR;tu fd;k tk ldrk gS ysfdu orZeku Ádj.k dh ifjfLFkfr;ka blls fHkUu gSA orZeku Ádj.k esa ek= ÁkFkhZ;k eksfudk dks ljdkjh ukSdjh esa rykd'kqnk efgyk ds vk/kkj ij ukSdjh ikus gsrq fookg&foPNsn dh fMØh dh vko';drk gSA tks bl U;k;ky; ds er esa ,oa ekuuh; mPpre U;k;ky; o mPp U;k;ky; }kjk fn;s x;s fn'kk&funsZ'kksa esa mfpr Árhr ugha gksrk gSA vkt orZeku ifjÁs{; esa ;g ns[kus esa vk;k gS fd efgykvksa }kjk ljdkjh ukSdjh esa ifjR;Drk ds vk/kkj ij vkj{k.k ÁkIr djus gsrq tku&cq>dj rykd dh fMØh U;k;ky; esa ÁkIr dh tkrh gS tks dnkfi vf/kfu;e o ekuuh; mPpre U;k;ky; o mPp U;k;ky; }kjk fn;s x;s fn'kk funsZ'kksa ds mn~ns'; dks iwjk ugha djrk gSA fookg&foPNsn ,d vR;ar dfBu ifjfLFkfr;ksa esa fy;k x;k fu.kZ; gS ftls dsoy ek= ukSdjh ikus ds mn~ns'; ds fy;s gfFk;kj dh rjg mi;ksx esa ugha fy;k tk ldrk gSA vr% esjs fouez er esa mDr vk/kkj ij dqfyax vof/k vfHkR;tu djuk dnkfi mfpr ugha gSA ÁkFkhZ;k }kjk viuh rykd ;kfpdk ds vkosnu esa dgh Hkh ;g Li"V nf'kZr ugha fd;k gS fd fdl fnukad dks mldk fookg gqvk] fdrus fnu og vius ifr ds lkFk nkEiR; thou esa jgh vkSj fdu fo'ks"k ifjfLFkfr;ksa ds dkj.k ls mldks fookg&foPNsn pkfg,A dqfyax vof/k vfHkR;tu djuk dsoy ek= viokfnd ifjfLFkfr;ksa esa mfpr gSA mls lkekU; fu;e ugha cuk;k tk ldrk gS] vU;Fkk /kkjk 13&ch fgUnw fookg vf/kfu;e esa of.kZr 06 ekg dh dqfyax vof/k dk mn~ns'; gh lekIr gks tk;sxkA vr% mijksDr foospu ,oa Ádj.k ds rF;ksa] ifjfLFkfr;ksa dks ns[krs gq, mDr ÁkFkZUkk&i= fujk/kkj Árhr gksrk gS tks vLohdkj dj [kkfjt fd;k tkrk gSA i=koyh okLrs lk{; ÁkFkhZx.k fnukad 15-02-2022 dks is'k gksA** 8. In the opinion of this Court, the reason given by the Court below that the petitioner has filed this petition under Section 13B, so also the application for waiving of cooling period for the purpose of getting employment in the Government service as a divorcee candidate, cannot be countenanced. The observation made by the Court below is not only based on conjunctures and surmises, the same are also not germane for the purpose of deciding application for waiving off of cooling period. There is no material to infer that the application for divorce has been filed for getting Government job. 9. While rejecting the application dated 18.12.2021, the Family Court has not even considered the vital fact that the petitioner had earlier moved an application under Section 13 of the Act of 1955, which stood dismissed because the statutory period of one year, as prescribed under Section 14 of the Act, had not passed. This fact itself is enough to establish that the matrimonial relations between the petitioner and the respondent were discordant. 10. The impugned order dated 06.01.2022 passed by the Judge, Family Court is hereby quashed and set aside. The application dated 18.12.2021 is restored back to the dockets of Family Court, Gulabpura, who shall reconsider the application afresh in accordance with law on the next date of hearing which is reported to be on 15.02.2022. 11. Stay application also stands disposed of.