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Ashutosh Agarwal S/O Shri Mukesh … vs Smt Anjali Mittal W/O Shri … on 24 September, 2019

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

//Jaiman//95

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