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RAJASTHAN HIGH COURT
Dinesh Mehta, J.
Ankita Singhal - Appellant
Versus
Hemant Kumar Aseri - Respondent
Civil Writ Petition No. 16579 of 2021
Decided On : 29-11-2021
Waiver - Divorce - Hindu Marriage Act, 1955 - Sections 13-B(2) - The court interpreted the provisions allowing waiver of the statutory waiting period for divorce by mutual consent, emphasizing the discretion of the court based on the circumstances of the case.
Fact of the Case:
The parties, married since 2012, have been living separately since 2014 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 for waiving the statutory period as outlined in the Supreme Court's decision in Amardeep Singh's case were met, allowing the waiver based on the parties' education, mutual consent, and lack of reconciliation prospects.
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, not mandatory, and can be waived if specific conditions are satisfied, 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. Mr. Hemant Kumar - respondent is present in person. The service is, therefore complete.
2. This writ petition has been preferred on behalf of the petitioner being aggrieved with the order dated 16.11.2021 passed by the Family Court No.1, Jodhpur (for short 'the court below') in Suit No.605/2021, 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.
3. Mr. Hemant Kumar Sharma, respondent - present in person, 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. Hemant Kumar submitted that he has no objection if the relief prayed for in this writ petition is granted.
4. Brief facts of the case are that the marriage of the parties was solemnized as per Hindu customs on 05.11.2012 in Jodhpur. It appears that soon after the marriage, the relations of the parties became strained and both of them have been residing separately since 2014.
5. 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 17.09.2021.
6. The court below registered the said application and fixed the next date as 23.03.2022 for counselling of the parties.
7. In the meantime, the parties preferred a joint application on 16.11.2021, 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 16.11.2021.
8. 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.
9. Being aggrieved with order dated 16.11.2021, the present writ petition has been preferred before this Court.
10. Learned counsel for the petitioner and respondent present in person have submitted that both, the petitioner and the respondent are 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.
11. The counsel for the petitioner and respondent - present in person 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.
12. Heard learned counsel for the parties and perused the impugned order.
13. 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 :
The court affirmed that the statutory waiting period for divorce can be waived if the conditions set by the Supreme Court are satisfied, emphasizing judicial discretion.
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.
The court has the discretion to waive the statutory period under Section 13-B(2) of the Hindu Marriage Act, 1955, based on the fulfillment of specific conditions as outlined by the Hon’ble Supreme Co....
The period mentioned in Section 13-B(2) of the Hindu Marriage Act, 1955 is not mandatory but directory, and the court has the discretion to waive the waiting period based on the facts and circumstanc....
The court has the discretion to waive the six months waiting period for divorce by mutual consent if certain conditions are fulfilled.
The court has the discretion to waive the statutory period under Section 13-B(2) of the Hindu Marriage Act, 1955, based on specific conditions and the facts and circumstances of each case.
The statutory waiting period under Section 13-B(2) of the Hindu Marriage Act, 1955 is directory, allowing courts to waive it when reconciliation is unlikely and parties are educated.
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