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2023 DIGILAW 2067 (RAJ)

Gaurav Sharma, S/o. Shri Anil Kumar Sharma v. Manisha Sharma, W/o. Shri Gaurav Sharma, D/o. Shri Inder Raj Sharma

2023-11-04

DINESH MEHTA, RAJENDRA PRAKASH SONI

body2023
JUDGMENT : 1. The parties herein are husband and wife. 2. Present civil misc. appeal has been preferred on behalf of the appellant-husband being aggrieved with the order dated 01.09.2023 passed by the Family Court No.1, Jodhpur Metropolitan in Civil Case No.873/2023, whereby a joint application filed by the parties for waiver of six months “cooling off” period as prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 has been dismissed. 3. Factual matrix giving rise to the present appeal is that the marriage between the parties was solemnized on 28.11.2019 as per Hindu customs and rituals. Couple has not been blessed with any child out of the said wedlock. Relationship between the parties got strained and they are living seperately since 03.09.2020. Though the elders and family members of the parties had taken several efforts for re-union, it ended in vain. Now, both have agreed for divorce by mutual consent. Therefore, they filed a petition for dissolution of marriage by mutual consent under Section 13(B) of Hindu Marriage Act, 1955 before the Family Court No.1, Jodhpur Metropolitan. 4. Learned Presiding Officer made his efforts to settle the matter and the first motion counselling was made, but all the efforts failed and the hearing was adjourned to 03.02.2024. In the meanwhile, both the parties filed an application for waiving off cooling period of six months on 21.08.2023 but the learned Presiding Officer dismissed the same vide order dated 01.09.2023 on the ground that the parties have not disposed of their pending litigation filed against each other. 5. It is argued that after passing of impugned order dated 01.09.2023, all other cases have already been withdrawn/settled by the respective parties. The respondent has already paid Rs.12.5 Lakhs as permanent alimony to his wife. Now the waiting period will only prolong agony of the parties since no other issue is pending between them; that there is no possibility of their reunion; that any delay will affect the chances of their resettlement. 6. The learned Counsel for the appellant by referring the decision of the Hon'ble Supreme Court in “Amardeep Singh Vs Harveen Kaur” reported in (2017) 8 SCC 746 submits that since the parties have been living separately for the past more than three years, the statutory cooling off period has to be waived in case of mutual consent divorce, as per the guidelines of the Hon'ble Supreme Court. 7. 7. Learned counsel for the respondent appeared suo moto. A copy of petition was supplied to him by learned counsel for the appellant. He, however, expressed his consent to waive the cooling off period. He also admitted that all the cases pending in various courts between the parties have been settled/withdrawn prior to filing of present appeal. 8. Heard the learned Counsel for the parties and perused the materials. We have also given due consideration to the issue involved. 9. It is admitted that the marriage between the parties was solemnized 28.11.2019 and they claim that they have been living separately from 03.09.2020. Now they have filed a petition before the Family Court seeking divorce on mutual consent. 10. The question that arises for consideration is to waive-off the cooling period, as required under Section 13-B(2) of the Act. The Hon'ble Supreme Court, in the decision in Amardeep Singh's case (supra), has held as follows:- “16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 18. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 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. 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.” 11. The above guidelines prescribes that there is an obligation on the part of the Courts to make last-minute efforts to save the marriage at any cost. Even the Courts want to save the matrimonial life rather than breaking it. In our society, marriage is considered as a sacred one and not a legal contract. With this view in mind, the law makers fixed the period of six months, so as to enable the parties to come together for reunion, instead of mutual divorce. But, in cases, where there is no possibility of re-union, especially after the divorce by mutual consent process has been initiated, the facts of the case has to be considered independently. A broken iron can be joined together, but not broken hearts and granting divorce to a couple, after considerable period of time, is nothing but operation success but patient died. A broken iron can be joined together, but not broken hearts and granting divorce to a couple, after considerable period of time, is nothing but operation success but patient died. Irretrievable marriage should come to an end at the earliest possible of time, so that the couple could have a better option to start their life, afresh. 12. Since it has now been held by the Hon'ble Supreme Court that the “cooling off” period as mentioned in Section 13B(2) of the Act is not mandatory but directory, though it was once compulsory for mutual consent divorce and when there is no possibility of parties resuming cohabitation, this court is of the view that the cooling off period in present case is to be waived. 13. After taking into consideration the facts of the present case, we are of the opinion that the conditions set out by the Hon’ble Supreme Court in Amardeep Singh’s case (supra) are fulfilled in the present case, particularly the fact that the parties are sufficiently educated and they have mutually decided to end their matrimony finding no hope/chance of reconciliation, we are 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. 14. In view of the above, impugned order passed by the learned Family court cannot be sustained in law and it is liable to be set aside. The instance civil misc. appeal is allowed and the six months “cooling off” period is hereby waived. Learned Family Court concerned shall decide the main divorce petition latest by 30.11.2023 independently and dispose of the same, after ascertaining the bonafideness of the consent of the parties. Before granting divorce decree by mutual consent, the learned Family Court will ensure that all the pending litigation between the parties in different courts have been settled/withdrawn amicably. The parties shall appear before the Family Court No.1, Jodhpur Metropolitan on 20.11.2023. 15. Disposed of accordingly.