HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No.4707/2019
Ashutosh Agarwal S/o Shri Mukesh Agarwal, Aged About 27
Years, B/c Mahajan, R/o Plot No. 168-C, Barkat Nagar, Gali No.
7, Tonk Phatak, Jaipur (Rajasthan)
—-Appellant
Versus
Smt Anjali Mittal W/o Shri Ashutosh Agarwal D/o Shri Ajay
Agarwal, R/o Mittal House, Bajajo Ki Dharamshala Ke Pass,
Hindaun City, District Karauli
—-Respondent
For Appellant(s) : Mr. Sudesh Bansal
Mr. Ashutosh Agarwal, appellant,
present in person
For Respondent(s) : Mr. Mohd. Adil
Mrs. Anjali Mittal, respondent, present
in person
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
24/09/2019
Both the husband-appellant and the respondent-wife are
present in the Court. They have signed the court proceedings.
They have been identified by their respective counsel.
This appeal under Section 19 of the Family Courts Act, 1984,
read with Section 28 of the Hindu Marriage Act, 1955, has been
filed by the appellant-husband challenging order dated 27.08.2019
of the Family Court No.1, Jaipur, in Divorce Petition No.3670/2019
(828/2019), whereby the joint application filed under Section 13-
B(2) read with Section 14 of the Hindu Marriage Act, 1955, to
waive the cooling off period of six months and to allow the petition
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filed under Section 13-B of the Hindu Marriage Act, 1955, for
grant of decree of divorce by mutual consent, has been dismissed.
The appellant was married to the respondent on 29.06.2018
and thereafter owing to certain disputes, both the parties have
been living separately since 03.07.2018. There was no
cohabitation between them. No child was born to the respondent-
wife out of the wedlock. Having considered that there was no
possibility of their living together, the parties preferred a petition
for obtaining decree of divorce by mutual consent under Section
13-B of the Hindu Marriage Act on 28.05.2019. The Family Court
took the matter on 03.07.2019 and observed that the period of
one year, as per the requirement of first motion under Section 13-
B(1) of the SectionHindu Marriage Act, 1955, has been completed as
parties were living separately since last one year. The Family Court
posted the matter after six months to be listed on 13.01.2020 for
completion of second motion under Section 13-B(2) of the Hindu
Marriage Act, 1955. Thereafter, both the parties filed joint
application on 18.07.2019 under Section 13-B (2) of the SectionHindu
Marriage Act, 1955 praying for waiving the cooling off period of six
months as the same would cause mental agony and hardship,
which has been dismissed by the impugned order.
Both the parties appeared before the Family Court on several
dates and stated that there is no possibility of conciliation or
mediation, therefore, their application to waive the cooling off
period of six months may be allowed and the divorce by mutual
consent may be granted prior to expiry of six months. The learned
Family Court has dismissed the application vide impugned order
dated 27.08.2019.
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It is submitted that so far as the permanent alimony and
‘stridhan’ are concerned, both the parties have already settled the
issues and there is no other case pending between them. Only the
marriage is to be dissolved, which has remained only legal
bondage, otherwise the marriage is virtually dead. Out of the
amount of Rs.15,00,000/- (Rupees fifteen lakh only) of permanent
alimony settled between the parties in lieu of full and final
settlement, the respondent-wife has already received an amount
of Rs.7,50,000/- and a Cheque of the remaining amount in the
name of the respondent-wife (Anjali Mittal) has been deposited
along-with the petition in the Court and that Cheque shall be
handed over to her immediately after the decree of divorce by
mutual consent is ordered.
The appellant-husband and the respondent-wife, who are
present in the Court, are agreed about the compromise entered
between them. Both the parties submitted that even a petition
under Section 13 of the Act, on joint request of the parties, can be
converted into one under Section 13-B of the Act for grant of
decree of divorce by mutual consent. 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 Singh Vs.
Harveen Kaur – (2017) 8 SCC 746. In Amardeep Singh,
supra, the Supreme Court laid down that since the cooling off
period mentioned in Section 13-B(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
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possibility of parties resuming cohabitation and there are chances
of alternative rehabilitation.
Learned counsel for the parties have also relied on the
judgment of this Court in Smt. Palak Jain Vs. Naveen Rawat,
(2019) AIR (Raj.) 33, wherein also this Court waived the
cooling off period of six months and ordered to dissolve the
marriage of the parties by mutual consent in terms of the
compromise entered into between the parties.
In view of the compromise arrived at between the parties,
we are persuaded to allow the appeal. The appeal is accordingly
allowed. The impugned order dated 27.08.2019 of the Family
Court No.1, Jaipur is set side. The marriage between appellant-
husband and respondent-wife is therefore dissolved by mutual
consent with immediate effect in terms of the compromise entered
between them. Decree of divorce be prepared accordingly. The
Family Court No.1, Jaipur, shall immediately handover the Cheque
of Rs.7,50,000/-, referred to above, so deposited with it by the
appellant-husband, to the respondent-wife to enable her to get
the same honoured. If the Cheque, referred to above, is not
honoured, the respondent-wife would be at liberty to get the
proceedings revived and recall the order.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),Acting CJ
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