IMPORTANT POINT
Court may pass decree of divorce on mutual consent where marriage has reached stage of irretrievable break down without resorting to statutory cooling period.

ORDER

This appeal under Section 19 of the Family Courts Act, 1984 has been preferred claiming the following reliefs:-

“(i) may kindly be set aside the order dated 19.04.2024 (Annex.3) passed by the learned Judge, Family Court No.1, Jodhpur Metropolitan;

(ii) direction may kindly be issued to the learned Judge, Family Court No.1, Jodhpur Metropolitan to waive the waiting period of six months;

(iii) direction may kindly be issued to the learned Judge, Family Court No.1, Jodhpur Metropolitan to pass the divorce decree to the parties at an early date;

(iv) any other appropriate order or direction, which this Hon’ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the appellant.”

2. Learned counsel for the parties jointly submits that the marriage of the appellant and respondent was solemnized with Hindu rites and ritual on 30.04.2012. Learned counsel further submits that the appellant and respondent are living separately since the year 2021. Learned counsel also submits that both the parties arrived at a joint settlement to part ways as the marriage has irretrievably broken down.

3. Learned counsel for the parties submits that 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.

20. 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.”

4. 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 Sec. 13-B(2) of the Hindu Marriage Act, 1955 (hereinafter to be referred as ‘the Act of 1955’).

5. 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 a Division Bench of this Hon’ble 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