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2023 DIGILAW 1643 (RAJ)

Ram Kumar v. None

2023-09-02

PUSHPENDRA SINGH BHATI

body2023
ORDER : (Pushpendra Singh Bhati, J.) This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs :- "A. By an appropriate writ, order or direction the learned Family Court No.2, Sriganganagar may kindly be directed to decide the application (annex-p/3) of the petitioners waiving the cooling off period of 6 months, as prescribed under Section 13B of the Act, 1955 and pass a divorce decree. B. By an appropriate writ, order or direction, the impugned order dated 17.08.2023 (p/4) so far as fixing the date upon application to waive the cooling off period of 6 months, on 30.10.2023 to that extent may kindly be quashed and set aside. C. By an appropriate writ, order or direction, the application filed by the petitioners dated 17.08.2023 (P/3) may kindly be allowed." 2. Learned counsel for the petitioners submits that the marriage of the petitioners was solemnised with Hindu rites and ritual on 24.11.2010 and a child has been born out of the said wedlock. Learned counsel further submits that the petitioners are living separately from each other for more than one year. Learned counsel also submits petitioners arrived at a joint settlement to part ways as the marriage has irretrievably broken down. 3. Learned counsel for the petitioners submits that Hon'ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur, reported in (2017) 8 SCC 746 ; has waived off the cooling period for the second motion; relevant portion reads as under :- "19. 3. Learned counsel for the petitioners submits that Hon'ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur, reported in (2017) 8 SCC 746 ; has waived off the cooling period for the second motion; relevant portion reads 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- (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." 4. Learned counsel for the petitioners has prayed that the order impugned be set aside and the court below be directed to condone or waive the statutory period specified under Section 13-B(2) of the Act of 1955. 5. At this juncture, this Court considers it appropriate to reproduce the relevant portion of the Judgment rendered in the case of Smt. Nisha Yadav v. Sandeep Yadav (D.B. Civil Misc. 5. At this juncture, this Court considers it appropriate to reproduce the relevant portion of the Judgment rendered in the case of Smt. Nisha Yadav v. Sandeep Yadav (D.B. Civil Misc. Appeal No.2505/2019) decided by the Division Bench of this Hon'ble Court at Jaipur Bench on 09.07.2019, as hereunder:- "Learned counsel for both the parties pray that after waiving the cooling off period of six months, this court may pass a decree of divorce on mutual consent keeping in view the fact that their marriage has reached the stage of irretrievable break down. In support of this submission, learned counsel relied on the judgments of the Supreme Court in Veena v. State Govt. of NCT, Delhi & Anr., (2011) 14 SCC 614 , Devinder Singh Narula v. Meenakshi Nangia - (2012) 8 SCC 580 , and Amardeep Singh v. Harveen Kaur - (2017) 8 SCC 746 . In Amardeep Singh, supra, the Supreme Court laid down that since the cooling off 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. In view of the compromise arrived at between the parties, we are persuaded to allow the appeal. The appeal is accordingly allowed. The impugned order dated 9.5.2019 passed by the Family Court No.1, Jaipur is set side. The cooling off period of six months is waived. The marriage between appellant-wife and respondent-husband is therefore dissolved by mutual consent with immediate effect in terms of the compromise entered into between the parties. They are now free to remarry. The divorce petition no.3132/2019 filed by both the parties under Section 13-B of the Hindu Marriage Act, 1955 before the Family Court No.1, Jaipur, is accordingly allowed. Decree of divorce be prepared accordingly.". 6. After taking into consideration the facts of the present case, this Court is the opinion that the conditions set out by the Hon'ble Supreme Court in Smt. Nisha Yadav (supra) & Amardeep Singh's case (supra) are fulfilled in the present case. 7. Decree of divorce be prepared accordingly.". 6. After taking into consideration the facts of the present case, this Court is the opinion that the conditions set out by the Hon'ble Supreme Court in Smt. Nisha Yadav (supra) & Amardeep Singh's case (supra) are fulfilled in the present case. 7. In light of the facts and circumstances of the case, particularly the fact that the petitioners are aware of their rights and have mutually decided to end their matrimony finding no hope/chance of reconciliation, this Court is of the opinion that their application for waiver of the statutory period of six months specified under Section 13-B(2) of the Act of 1955 deserves acceptance. 8. Hence, this writ petition is allowed. The impugned order dated 17.08.2023 passed by the learned court below is set aside and application filed by the petitioners for waiver of the statutory period of six months specified under Section 13-B(2) of the Act of 1955 is, hereby allowed. The statutory period of six months specified under Section 13-B(2) of the Act of 1955 is hereby waived in exercise of extraordinary powers available to this Court by virtue of Article 226 of the Constitution of India. 9. The learned trial court is accordingly directed to proceed strictly in accordance with law, while considering the cooling period as waived off. 10. All pending applications stand disposed of.