Allowed

Smt. Kusum Chouhan v. Jitendra Singh Kumpavat

Rajasthan HC5 Mar 2024CW/2143/2024

Case brief

AI extract

What is this about?

The High Court allowed the writ petition setting aside the Family Court's dismissal of the application to waive the six-month waiting period. Relying on Amardeep Singh, the High Court exercised extraordinary powers to waive the period, directing the Family Court to grant a divorce decree.

What did the court decide?

Impugned order set aside; application for waiver of six-month statutory period allowed; parties directed to appear for divorce decree.

Smt. Kusum Chouhan Vs Jitendra Singh Kumpavat — Matrimonial and Divorce | Rajasthan HC (2024)

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[2024:RJ-JD:10995]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 2143/2024

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Smt. Kusum Chouhan W/o Shri Jitendra Singh Kumpawat, D/o Shri Rawat Singh Chouhan, Aged About 34 Years, R/o House No. 36, Subhash Colony Bhagat Ki Kothi Jodhpur.

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----Petitioner

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Versus

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Jitendra Singh Kumpavat S/o Shri Shyam Singh Kumpavat, Aged About 38 Years, R/o House No. 2628 Saraswati Nagar Behind Rsm School Basni First Phase Jodhpur

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----Respondent

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For Petitioner(s) : Mr. Manohar Singh Sisodiya For Respondent(s) : Mr. Naresh Charniya

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HON'BLE DR. JUSTICE NUPUR BHATI

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Order

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05/03/2024

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1. The present writ petition has been preferred on behalf of the petitioner being aggrieved with the order dated 02.02.2024 (Annexure-2) passed by the Family Court No.1, Jodhpur (for short ‘the trial court’), whereby the joint application filed by the petitioner and the respondent for waiver of six months period prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 (for short ‘the Act of 1955’) has bee dismissed.

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2. Brief facts of the case are that the parties had solemnized marriage on 01.03.2006 and since 19.06.2017, they both are living separately and therefore the parties jointly preferred an application under Section 13-B of the Act of 1955 on 03.01.2024 before the learned trial court. After registration of the application, the petitioner appeared before the trial court on which the trial

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court fixed the next date as 25.06.2024 for filing the application in the second motion. Thereafter, the parties jointly preferred an application on 19.01.2024 with the prayer to waive of the period of six months.

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3. Learned trial court has rejected the application vide order dated 02.02.2024, the petitioner being aggrieved of the same, preferred the present writ petition.

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4. Learned counsel for the parties have submitted that both, the petitioner and the respondent are highly educated persons and both of them have decided to end their marriage by mutual consent after due deliberations. It is also submitted that the decision by the parties to end their marriage has not been taken in a hurry and reconciliation between the parties is highly unlikely. It is further submitted that the conditions set out in the case of Amardeep Singh Vs. Harveen Kaur, reported in (2017) 8 SCC 746 , under which statutory period of six months, as specified under Section 13-B(2) of the Act of 1955, can be waived are fulfilled in the present case and the court below has erred in refusing waiver of the six months’ statutory period.

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5. 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 Section 13-B(2) of the Act of 1955.

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6. Heard learned counsel for the parties and perused the impugned order.

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7. The Hon’ble Supreme Court in Amardeep Singh’s case

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(supra) has held as under :-

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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

(3 of 4)

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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:

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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 13-B(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 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;

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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.

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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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Since we are of the view that the 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 possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

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8. After taking into consideration the facts of the present case, I am of the opinion that the conditions set out by the Hon’ble Supreme Court in Amardeep Singh’s case (supra) are fulfilled in the present case.

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9. In light of the facts and circumstances of the case, particularly the fact that the parties are sufficiently educated and are aware of their rights; as they have mutually decided to end their matrimony finding no hope/chance of reconciliation, I am of the opinion that their application for waiver of the statutory period of six months

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specified under Section 13-B(2) of the Act of 1955 deserves acceptance.

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10. Hence, this writ petition is allowed. The impugned order dated 02.02.2024 (Annexure-2) passed by the trial court is set aside and their application filed by the parties for waiver of the statutory period of six months specified under Section 13-B(2) of the Act of 1955 is, hereby allowed. The statutory period of six months specified under Section 13-B(2) of the Act of 1955 is hereby waived in exercise of extraordinary powers available to this Court by virtue of Article 226 of the Constitution of India.

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11. The parties are directed to appear before the court below on 14.03.2024, whereafter the concerned Family Court will pass decree of divorce in accordance with law.

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(DR. NUPUR BHATI),J

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surabhii/83-

Smt. Kusum Chouhan v. Jitendra Singh Kumpavat

Case brief

What is this about?

What did the court decide?

Smt. Kusum Chouhan v. Jitendra Singh Kumpavat

Case brief

What is this about?

What did the court decide?

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