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2024 DIGILAW 917 (RAJ)

Vikram Singh Rathore v. Ambika Kanwar Shekhawat

2024-07-02

MUNNURI LAXMAN, PUSHPENDRA SINGH BHATI

body2024
ORDER : 1. This appeal under Section 19 of the Family Courts Act, 1984 has been preferred claiming the following reliefs: “(i) may kindly be set aside the order dated 19.04.2024 (Annex.3) passed by the learned Judge, Family Court No. 1, Jodhpur Metropolitan. (ii) direction may kindly be issued to the learned Judge, Family Court No. 1, Jodhpur Metropolitan to waive the waiting period of six months. (iii) direction may kindly be issued to the learned Judge, Family Court No. 1, Jodhpur Metropolitan to pass the divorce decree to the parties at an early date. (iv) any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the appellant.” 2. Learned counsel for the parties jointly submits that the marriage of the appellant and respondent was solemnized with Hindu rites and ritual on 30.04.2012. Learned counsel further submits that the appellant and respondent are living separately since the year 2021. Learned counsel also submits that both the parties arrived at a joint settlement to part ways as the marriage has irretrievably broken down. 3. Learned counsel for the parties 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 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 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. (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 parties have therefore jointly prayed that the order impugned be set aside and the court below be directed to condone or waive the statutory period specified under Section 13B(2) of the Hindu Marriage Act, 1955 (hereinafter to be referred as '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. Appeal No. 2505/2019) decided by a 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 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. In Amardeep Singh, supra, the Supreme Court laid down that since the cooling off 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. 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 13B 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 of the opinion that the conditions set out by the Hon'ble Supreme Court in Amardeep Singh's case (supra) and Division Bench of this Hon'ble Court in Smt. Nisha Yadav (supra) are fulfilled in the present case. 7. In light of the facts and circumstances of the case, particularly the fact that the parties 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 the application for waiver of the statutory period of six months specified under Section 13B(2) of the Act of 1955 deserves acceptance. 8. Hence, this appeal is disposed of. The impugned order dated 19.04.2024 passed by the learned court below is set aside and the application for waiver of the statutory period of six months specified under Section 13B(2) of the Act of 1955 is, hereby allowed. Accordingly, the statutory period of six months specified under Section 13B(2) of the Act of 1955 is hereby waived. 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.