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Mamta vs Alok on 12 December, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 4767 / 2017
Mamta W/o Alok, D/o Shri Kishan Kumar, B/c Arora (Punjabi),
Aged About 30 Years, R/o House No. 408, 409 Fourth Floor, Hill
Top Plaza, Jahawar Nagar, Jaipur, At Present Ward No.-22 Adarsh
Colony, Chirawa, Tehsil Chirawa, Distt. Jhunjhunu.
—-Appellant
Versus
Alok S/o Shri Naresh, B/c Arora (Punjabi), Aged About 32 Years,
R/o House No-408, 409 Fourth Floor, Hilltop Plaza, Jahawar Nagar,
Jaipur (Raj)
—-Respondent

__
For Appellant(s) : Mr. Rajpal Dhankhar, Adv.
For Respondent(s) : Mr. T.C. Sharma, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Order
12/12/2017

The present civil misc. appeal is directed against the

judgment decree dt.28.07.2017 passed by the Ld. Judge

Family Court, Jhunjhunu, rejecting application for divorce filed by

the appellant (wife) u/Sec.13 of the Hindu Marriage Act, 1955

(hereinafter ‘the Act of 1955’).

The indisputed facts which has come on record are that the

marriage of the appellant respondent was solemnized according

to the Hindu rites rituals on 27.04.2009 at Chirawa, District

Jhunjhunu but it was unfortunate that they could not maintain

their matrimonial relation the appellant-wife has certain

grievances of the alleged cruelty being committed by the

respondent-husband and one stage at her instance F.I.R.

(2 of 6)
[CMA-4767/2017]

No.312/10 came to be registered u/Sec.323, 498A 406 IPC. It

was alleged that on some occasions they tried their best to resolve

their matrimonial discord and the family members also intervened

to maintain their matrimonial relationship but unfortunate fail

she decided to file divorce petition u/Sec.13(1) (ia) (ib) of the Act

1955 that came to be dismissed by the ld. Family Court vide its

judgment decree dt.28.07.2017 which is the subject matter of

challenge at the instance of the appellant-wife in the instant

appeal.

During pendency of the appeal, the matter was sent for

mediation and with the assistance of their counsel they explored

other modalities/possibilities in resolving their matrimonial discord

and finally they have arrived to a conclusion that decree of divorce

by consent u/Sec.13-B of the Act of 1955 be obtained after due

compliance of the provision and the mandate of law. A joint

application came to be filed by the parties with the request to

dissolve their marriage by mutual consent, although title cover

does not indicate of 13B but the recital contents of the

application certainly are in confirmity of the mandate

requirement of Sec.13B of the Act 1955. The application has been

duly signed by the parties and identified by their respective

counsel and duly notarized filed on 28.11.2017.

It is not disputed that the terms conditions deduced in

writing on which the parties arrived to an amicable settlement to

dissolve their marriage by mutual consent has been complied with

by each of them and in addition to it, the respondent-husband has

tendered a sum of Rs.22 lakhs by different demand drafts in the
(3 of 6)
[CMA-4767/2017]

name of the appellant Mamta and original demand drafts have

been handed over to her who is present in Court towards

permanent alimony all other claims and that apart there was a

condition for transfer of vehicle in the name of the respondent that

too has been complied with and that apart the criminal

proceedings which are initiated at the instance of the appellant as

agreed that she will not prosecute the criminal case any further

and has no objection if the proceedings are quashed set-aside

initiated at her instance.

The parties have jointly filed application u/Sec.13B it has

been submitted that they are living separately for last 7 years it

may not be possible for them to reunite and live together as

husband wife since thereafter.

In furtherance thereof application has been filed under

Section 13B (2) of the Act of 1955 for waiver of the

statutory/cooling period of six months in view of the judgment of

the Apex Court in the case of Amardeep Singh Versus Harveen

Kaur decided on 12.09.2017.

We considered it appropriate to quote the relevant paras 18

to 22 of the aforesaid judgment, which reads as under:-

“18. 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 13B(2), it can do
so after considering the following :

i) the statutory period of six months specified in
Section 13B(2), in addition to the statutory period of
one year under Section 13B(1) of separation of
parties is already over before the first motion itself;

(4 of 6)
[CMA-4767/2017]

ii) all efforts for mediation/conciliation including
efforts in terms of Order XXXIIA 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.

19. The waiver application can be filed one week
after the first motion giving reasons for the prayer
for waiver.

20. If the above conditions are satisfied, the waiver
of the waiting period for the second motion will be in
the discretion of the concerned Court.

21. Since we are of the view that the period
mentioned in Section 13B(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.

22. Needless to say that in conducting such
proceedings the Court can also use the medium of
video conferencing and also permit genuine
representation of the parties through close relations
such as parents or siblings where the parties are
unable to appear in person for any just and valid
reason as may satisfy the Court, to advance the
interest of justice.

23. The parties are now at liberty to move the
concerned court for fresh consideration in the light of
this order.”

(5 of 6)
[CMA-4767/2017]

After having heard heard the parties and taking note of the

submissions made we are satisfied that the parties has made all

attempts to resolve their matrimonial discord through the process

of mediation/conciliation but failed to reunite and this Court is also

satisfied that there is no likelihood of any success in the said

direction by any further efforts and waiting period will prolong

their agony and has made out a case for waiver of a

statutory/cooling period of six months as mandated u/Sec.13B(2)

of the Act 1955 for seeking decree of divorce by mutual consent.

At this stage the parties have further agreed to withdraw

their allegations counter allegations levelled during the

proceedings and tender unconditional apology to each other and

either of them will not proceed with any of their application if any

filed/pending before the appropriate competent forum including

filed at the instance of the appellant before the Criminal Court of

jurisdiction pending u/Sec.323, 498A 406 IPC and all other

litigation arrived from this marriage stands resolved she has no

objection if the pending proceedings initiated at her instance also

stand quashed set-aside.

Accordingly, the application filed u/Sec.13B of the Hindu

Marriage Act is allowed and their marriage solemnized on

27.04.2009 with their consent stands dissolved. At the same

time, the criminal proceedings (Criminal Case No.265/2015)

pending before the ACJM, Jhunjhunu initiated at the instance of

the appellant u/Sec.323, 498A 406 IPC as she has given her

consent not to proceed further in the pending criminal

proceedings, we are of the view that no purpose is going to be
(6 of 6)
[CMA-4767/2017]

served in proceeding with the criminal proceeding any more and

accordingly we consider it appropriate to set-aside the

proceedings.

Let the copy of this order be placed before the Ld. Judge

where the criminal proceedings are pending for passing

appropriate orders. Registry may prepare a decree of divorce by

mutual consent as indicated above.

The appeal in above terms stands disposed of.

(DEEPAK MAHESHWARI),J. (AJAY RASTOGI),J.

R.Vaishnav

23.

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