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2023 DIGILAW 872 (RAJ)

Sheela Gurjar v. Debi Lal Gurjar

2023-04-19

PRAVEER BHATNAGAR, PUSHPENDRA SINGH BHATI

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JUDGMENT : (Pushpendra Singh Bhati, J.) : This civil misc. appeal has been preferred against the judgment and decree dated 07.02.2022 passed by learned Family Judge (Additional District and Session Judge), Gulabpura, District Bhilwara in Civil Misc. Case No. 46/2021 (CIS No. 46/2021), whereby the learned judge has dismissed the application filed by the appellant under Section 13 of the Hindu Marriage Act. 2. Learned counsel for the parties jointly submit that the parties have compromised the matrimonial matter. 3. Learned counsel for the parties jointly seek permission to file fresh application under Section 13-B of the Hindu Marriage Act. 4. Learned counsel for the petitioner subrhits that the cooling period, in the given factual matrix, deserves to be waived. In this regard, learned counsel relied upon the judgment rendered by a Coordinate Bench of this Hon'ble Court in the case of Monika Sharma v. Rahul Sharma, (S.B. Civil Writ Petition No. 15518/2021) decided on 09.11.2021; relevant portion whereof reads as under: 6. The judgment of the Hon'ble Supreme Court rendered in the case of Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 was placed before the court below, however, the court below observed that since the facts of Amardeep Singh's case, (supra) are distinguishable from the facts of the present case and no extraordinary situation exists in the present case, the application seeking waiver of six months’ statutory period specified under Section 13-B(2) of the Act of 1955 cannot be granted. 11. The Hon'ble Supreme Court in Amardeep Singh's case, (supra) has held as under:— “19. 11. The Hon'ble Supreme Court in Amardeep Singh's case, (supra) has held 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/concilliation 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-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.” 12. After taking into consideration the facts of the present case, I am 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. 13. In light of the facts and circumstances of the case, particularly the fact that the parties are sufficiently educated and are aware of their rights - the petitioner (wife) is engaged in a private job and the respondent (husband) is running a business. As they have mutually decided to end their matrimony finding no hope/chance oft reconcilliation, 1 am 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. Hence, this writ petition is allowed. As they have mutually decided to end their matrimony finding no hope/chance oft reconcilliation, 1 am 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. Hence, this writ petition is allowed. The impugned order dated 08.09.2021 passed by the court below is set aside and their application dated 08.09.2021 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 extra ordinary powers available to this Court by virtue of Article 226 of the Constitution of India. 15. The parties are directed to appear before the court below on 22nd November 2021, whereafter the concerned Family Court will pass decree of divorce in accordance with law. 5. Consequently, in light of such joint submission and the judgment cited at the Bar, the civil misc. appeal is allowed, while quashing and setting aside the judgment and decree dated 07.02.2022 passed by learned Family Judge (Additional District and Session Judge), Gulabpura, District Bhilwara. 6. The parties shall be at liberty to move fresh application under Section 13-B of the Hindu Marriage Act, which may be decided by the learned Family Court, strictly in accordance with law, without getting prejudiced of the impugned order. The cooling period of six months for second motion for the purpose of Section 13B of the Hindu Marriage Act is waived off in light of the precedent law cited above. 7. All pending applications stand disposed of.