Allowed

Amit Kumar Jaiswal v. Smt. Pallavi Jaiswal

Allahabad HC24 Nov 2023FAPL/1273/2023

Case brief

AI extract

What is this about?

First appeal filed against rejection of application to waive six-month cooling period for second divorce motion. Court held the period is directory and allowed waiver due to failed reconciliation and prolonged separation, permitting second motion to proceed.

What did the court decide?

Set aside impugned order waiving cooling period; second motion petition proceedings to proceed at earliest

Amit Kumar Jaiswal Vs Smt. Pallavi Jaiswal — Matrimonial and Divorce | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:223128-DB

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Court No. - 39

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Case :- FIRST APPEAL No. - 1273 of 2023

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Appellant :- Amit Kumar Jaiswal Respondent :- Smt. Pallavi Jaiswal Counsel for Appellant :- Harish Chandra Dwivedi

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Hon'ble Saumitra Dayal Singh,J. Hon'ble Shiv Shanker Prasad,J.

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Heard Sri Harish Chandra Dwivedi, learned counsel for the appellant and Sri Mohd. Faizan Ali, Advocate, who has put in appearance on behalf of the respondent, today.

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Present appeal has been filed under Section 19 of the Family Courts Act, 1984, arising from the order of the learned Additional Principal Judge, Family Court No. 1, Varanasi dated 30.09.2023 in Case No. 1671 of 2023 (Amit Kumar Vs. Pallavi Jaiswal). By that order, the learned court below has rejected the application filed by the parties, seeking waiver of cooling period for six months in instituting the second motion joint petition under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act').

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Undisputedly, the appellant is 41 years of age while the respondent is 34 years of age. Both are educated. The appellant is running his own business being a retail shop while the respondent is pursuing a course in digital marketing at Delhi where she also perceives existence of job opportunities. Their educational status and professional goals apart, they were married of their own freewill on 04.02.2022. However, it is admitted case between the parties that they could not live together beyond 15 days. They have been living separately since February, 2022 i.e. for a period of more than one year and nine months.

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It is in such circumstances, the parties filed first motion petition under Section 13-B of the Act on 20.09.2023 well after

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completion of one year of marriage. That petition was accompanied by personal affidavits of both parties, clearly stating, there are irreconcilable differences between them in their marriage and that they have been living separately since February, 2022. As to efforts of reconciliation/mediation, again, it is their admitted case that various efforts were made by family and friends as also by the parties to reconcile their dispute such that the parties may be able to re-establish their relationship. All those efforts described to have been failed.

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In Vijay Agarwal Vs. Smt. Suchita Bansal, 2023 (8) ADJ 484 , this Court has observed as under :

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"4. The issue involved is no longer res integra. In Amardeep Singh Vs. Harveen Kaur (2017), 8 SCC 746 , it was held as below :

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"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 13B (2), it can do so after considering the following :

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(i) The statutory period of six months specified in Section 13 B(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;

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(ii) All efforts for mediation/conciliation including efforts in terms of Order 32A 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;

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(iii) The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

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(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.

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20. 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."

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5. That principle of law laid down by the Supreme Court has not been departed from, in any subsequent or other decision of that Court.

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6. After considering the provisions of law, the Supreme Court had thus clarified that though the provision of Section 13B(2) postulates a cooling period of six months, that stipulation of time was not mandatory. Not only the provision stipulating six months' time period was held to be directory, further, the Supreme Court held that the discretion to waive that stipulation of time would vest in the Court dealing with the second motion petition. The intent of the decision of the Supreme Court and the

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interpretation of the law made by it are clear as daylight. Once the Supreme Court observed that the stipulation of time was directory and that the discretion to waive it may be exercised in the individual facts and circumstances of each case, by the Court, clearly, it had left no manner of doubt to arise with any party, less so the Court itself, as to who may exercise the discretion.

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7. Insofar as the Supreme Court interpreted the statutory provision and laid down the law, that decision of the Supreme Court may never have been described as an exercise referable to Article 142 of the Constitution of India.

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8. Article 142 of the Constitution of India enables the Supreme Court to do complete justice in the facts of any case. However, by very nature of that power, whenever exercised, that Court never seeks to lay down any proposition or principle of law. Here, to the contrary, the Supreme Court laid down the law in no uncertain terms. It took note of the statutory provision contained under Section 13B of the Act, 1955 and interpreted it to reach the conclusion that the same was directory and that the discretion to waive the stipulation of time would vest with the Court dealing with the second joint motion petition, seeking to dissolve the marriage between those parties."

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In the present case also, we find, the parties have lived separately for more than a year before filing the first motion petition. Their efforts to reconcile their differences though made privately i.e. with the help of friends and family, also appear to have failed. At present, it appears, through dissolution of their marriage, the parties seek peace for themselves. There is no child born to the marriage and there are no other proceedings shown to be pending between them. In such circumstances, on one hand, no useful purpose may ever be achieved in delaying the final outcome of the proceedings, at the same time, pendency of such proceeding may only prolong the agony of the parties.

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For the reasons contained above, the present appeal is allowed . The order dated 30.09.2023 is set aside. The cooling

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period is waived. The parties are at liberty to proceed with second motion petition proceedings at the earliest. Subject to such compliance being made, the learned court below may make best effort to conclude the proceeding, as expeditiously as possible.

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Order Date :- 24.11.2023 Abhilash

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(Shiv Shanker Prasad, J.) (S. D. Singh, J.)

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Digitally signed by :- ABHILASH SINGH High Court of Judicature at Allahabad

Amit Kumar Jaiswal v. Smt. Pallavi Jaiswal

Case brief

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Amit Kumar Jaiswal v. Smt. Pallavi Jaiswal

Case brief

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