The discretionary nature of the cooling off period under Section 13-B(2) of the Hindu Marriage Act and the irretrievable breakdown of the marriage influenced the court's decision to waive the cooling off period and dissolve the marriage by mutual consent.

JUDGMENT

Mohammad Rafiq, J. - This appeal has been preferred by Smt. Nisha Yadav assailing the order dated 9.5.2019 passed by Family Court No. 1, Jaipur, which declined to waive off cooling period for decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act.

2. Learned counsel for the appellant has submitted that the appellant has received all the dowry articles from the respondent and does not want to receive any permanent alimony from the respondent. She wants to obtain decree of divorce and start a new life.

3. The matter was listed before this Court on 31.5.2019. The court taking into consideration this aspect that appellant does not want any permanent alimony, required the appellant to again think over this matter and deferred the matter for being listed on 8.7.2019. The matter was thereafter listed on 8.7.2019 and now came today. Today again, appellant submits that she has thought over the matter and wants to obtain the decree of divorce by mutual consent and does not wish to receive any permanent alimony from the respondent. Although, she submits that he already received all the dowry articles, jewellery, stri dhan, etc. back from the respondent.

4. The respondent-husband who is present in person also submits that he wants to obtain the decree of divorce by mutual consent from the appellant.

5. The appellant-wife and respondent-wife both are present today in Court. They signed the proceedings of the Court and have been identified by their respective counsel. Their marriage was solemnised on 4.12.2016 and both of them are living separately since 17.4.2017. The differences between them are so pronounced that there is no possibility of their rapprochement. They jointly filed the application U/s. 13B of the Hindu Marriage Act on 19.5.2018 before the learned Family Court No. 1, Jaipur. The Court vide order dated 19.5.2018 granted the time of six months to review their matrimonial relations. The parties thereupon submitted an application dated 21.07.2018 before the Family court to waive off the cooling period of 6 months for decree of divorce, but no order was passed on that application. Thereafter, the matter was transferred to Family court No. 2, Jaipur and on request of the parties and on the basis of compromise, the case was withdrawn before Lok Adalat on 12.01.2019. Thereafter, both the parties again filed an application dated 6.3.2019 under Section 13B of the Hindu Marriage Act for decree of divorce on mutual consent before the Family Court No. 1, Jaipur. On 11.04.2019, the parties filed an application to waive off cooling period of 6 months, however, the application was dismissed vide order dated 9.5.2019 on the ground that since the application was filed on 6.3.2019 and the first motion of application was on 7.3.2019, therefore, one and half years of separation of parties has not expired on the date of first motion. However, the matter was put up for subsequently reconciliation proceedings on 7.9.2019.

6. 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 .

7. 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.

8. In view of the compromise arrived at between the parties, we are persuaded to allow the appeal. The appeal is according