The court has the discretion to waive the waiting period for divorce by mutual consent under Section 13-B(2) of the Hindu Marriage Act, 1955 based on the facts and circumstances of each case.

ORDER

1. This writ petition has been preferred on behalf of the petitioner being aggrieved with the order dated 20.08.2022 passed by the Family Court No.3, Jodhpur (for short ’the court below’) in Civil Misc. Case No.771/2022 (Lata Navani V/s Himanshu Navani) whereby, the application filed by the parties for waiving cooling-off period of six months has been rejected.

2. Brief facts of the case are that the parties have submitted a joint application under Section 13-B of the Hindu Marriage Act,1955 (for Short ’the Act of 1955’) seeking divorce by mutual consent. As per the contents of the application under Section 13-B of the Act of 1955, marriage of the petitioner and the respondent was solemnized on 10.02.2012 at Jodhpur. It is mentioned in the application that out of the said wedlock, a girl child was born on 09.09.2018 and same will live with the petitioner in future. It is further mentioned in the application that though the petitioner and the respondent lived together as husband and wife for quite some time, but later on differences cropped ups between the parties and both of them started living separately from 15.01.2020 and now it is not possible for them to live together as husband and wife. It has specifically been mentioned in the application under Section 13-B of the Act of1955, duly supported by an affidavit of both the parties that both of them are living separately from 15.01.2020 and since then, there is no relation between them. It is also mentioned in the application that the petitioner has already paid alimony amount to the respondent and it is agreed by the respondent that she will not claim any further amount from the petitioner in future.

3. The application under Section 13-B of the Act of 1955 was filed before the court below on 28.07.2022 and the next date in the matter is fixed on 09.01.2023.

4. A joint application was filed by the parties before the court below for waving six months’ cooling-off period as provided under Section 13-B of the Act of 1955 on 05.08.2022, however, the court below has rejected the same while observing that the parties have failed to produce documents to prove the fact that both of them are living separately since 15.01.2020.

5. Learned counsels for the parties have submitted that both the petitioner and the respondent have stated on oath through affidavit that they are living separately since 15.01.2020 and, in such circumstances, there no requirement of producing any documentary evidence to prove the aforesaid fact.

6. Learned counsels for the parties have also placed reliance on the decision of the Hon’ble Supreme Court rendered in the case of Amardeep Singh Vs. Harveen Kaur, reported in (2017) 8 SCC746.

7. Heard learned counsel for the parties and perused the impugned order.

8. 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/conciliation including efforts in terms of Order 32-A Rule

3 CPC/Section23(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