Lokesh vs Deepika Alias Sonu

Dr. Nupur Bhati, J

This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs :-

"a. the order / direction / consequential order's may kindly be passed for waiving cooling off period in divorce petition in the Civil Original Case No.108/2024 in which next date is 23.07.2024.

b. and kindly quashed or set aside the order dated 20.03.2024 (Annexure-1) passed by the Family Court No-1, Jodhpur in the application filed by the parties for waiving cooling-off period of six months in the Civil Original Case No. 108/2024 has been rejected.”

Learned counsel for the parties jointly submit that the marriage of the petitioner and respondent was solemnized as per Hindu rites and ritual on 12.06.2012. They further submit that petitioner and the respondent are living separately from 04.09.2021. They also submit that both the parties arrived at a mutual settlement to part their ways, as the marriage has irretrievably broken down.

Learned counsel for the parties submit that the Hon'ble Supreme Court in the case of Amardeep Singh Vs. 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.

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.”

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 13-B(2) of the Act of 1955.

At this juncture, this Court considers it appropriate to reproduce the relevant portion of the Judgment rendered in the case of Smt. Nisha Yadav Vs. Sandeep Yadav (D.B. Civil Misc. Appeal No.2505/2019) decided by the Division Bench of this 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 Vs. State Govt. of NCT, Delhi & Anr., (2011) 14 SCC 614, Devinder Singh Narula Vs. Meenakshi Nangia - (2012) 8 SCC 580, and Amardeep Singh Vs. 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.”

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 Smt. Nisha Yadav (supra) & Amardeep Singh’s case (supra), are fulfilled in the present case.

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 their application for waiver of the statutory period of six months specified under Section 13-B(2) of the Act of 1955 deserves acceptance.

Hence, this writ petition is allowed. The impugned order dated 20.03.2024 (Annexure-1) passed by the learned court below is set aside and the application 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.

The learned trial court is accordingly directed to proceed strictly in accordance with law, while considering the cooling period as waived off. The parties may appear before the learned Family Court No.1, Jodhpur in Civil Original Case no.108/2024, on 29.04.2024.

Stay application as well as all other pending applications stand disposed of.