Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Raj) 2398

RAJASTHAN HIGH COURT
Dinesh Mehta, J.
Monika Sharma - Appellant
Versus
Rahul Sharma - Respondent
Civil Writ Petition No. 15518 of 2021
Decided On : 09-11-2021

Advocates appeared:
Mr. Ravi Panwar, Mr. Gajendra Panwar, for the Appellant; Mr. Praveen Bhati, for the Respondent.

The court affirmed that the six-month waiting period for divorce by mutual consent can be waived under extraordinary circumstances, as per the discretion outlined in the Supreme Court's ruling.

Headnote:
Waiver - Divorce - Hindu Marriage Act, 1955 - Sections 13-B(2) - The court interpreted the provisions allowing waiver of the six-month waiting period for divorce by mutual consent, emphasizing the discretion of the court in extraordinary circumstances.
Fact of the Case:

The parties, married since 2011, have been living separately since 2019 and sought a divorce by mutual consent. They applied for a waiver of the six-month waiting period under Section 13-B(2) of the Hindu Marriage Act, which was initially denied by the Family Court.
Finding of the Court:

The court found that the conditions set by the Supreme Court in Amardeep Singh's case were met, including the parties' education, mutual agreement to divorce, and lack of reconciliation prospects, warranting the waiver of the statutory period.
Issues: Whether the Family Court erred in denying the waiver of the six-month statutory period under Section 13-B(2) of the Hindu Marriage Act, 1955.
Ratio Decidendi: The court held that the statutory period under Section 13-B(2) is directory, allowing for discretion in waiving it when extraordinary circumstances exist, as established in Amardeep Singh's case.
Result: The writ petition is allowed, and the impugned order is set aside, waiving the six-month statutory period for divorce.

ORDER

1. This writ petition has been preferred on behalf of the petitioner being aggrieved with the order dated 08.09.2021 passed by the Family Court No.1, Udaipur (for short 'the court below') in Hindu Marriage Case No.391/2021, whereby the joint application filed by the petitioner and the respondent (hereinafter "parties") for waiver of six months period prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 (for short 'the Act of 1955) has been dismissed.

2. Learned counsel for the respondent Mr. Praveen Bhati has submitted that the respondent is also aggrieved with the order impugned and this writ petition has been filed with the consent of the respondent. Mr. Bhati has submitted that he has no objection if the relief prayed for in this writ petition is granted.

3. Brief facts of the case are that the marriage of the parties was solemnized as per Hindu customs on 03.12.2011 in Dhariyawad, District Pratapgarh. It appears that soon after the marriage, the relations of the parties became strained and both of them have been residing separately since 2019.

3. Despite the best efforts of the parties to restore conjugal relations and in spite of regular counselling by their near relatives the matrimonial dispute between them could not be settled and therefore the parties jointly filed an application under Section 13-B of the Act of 1955 seeking divorce by mutual consent before the court below on 02.08.2021.

4. The court below registered the said application on 02.08.2021 and fixed the next date as 02.03.2022 for counselling of the parties.

5. In the meantime, the parties preferred a joint application on 08.09.2021, praying for waiver of six months' statutory period specified under Section 13-B(2) of the Act of 1955. Arguments on the said application were heard and the court below dismissed the said application vide its order dated 08.09.2021.

6. The judgment of the Hon'ble Supreme Court rendered in the case of Amardeep Singh Vs. Harveen Kaur, reported in (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.

7. Being aggrieved with order dated 08.09.2021, the present writ petition has been preferred before this Court.

8. Learned counsel for the parties have submitted that both, the petitioner and the respondent are highly educated persons and both of them have decided to end their marriage by mutual consent after due deliberations. It is also submitted that the decision by the parties to end their marriage has not been taken in a hurry and reconciliation between the parties is highly unlikely. It is further submitted that the conditions set out in Amardeep Singh's case (supra) under which statutory period of six months, as specified under Section 13-B(2) of the Act of 1955, can be waived are fulfilled in the present case and the court below has erred in refusing waiver of the six months' statutory period.

9. The counsels for the parties have therefore prayed that the order impugned be set aside and the court below be directed to condone the waiver of the statutory period specified under Section 13-B(2) of the Act of 1955.

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

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

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