Chhattisgarh High Court: Rajendra Chandra Singh Samant J., allowed the petition and quashed the impugned order.
The facts of the case are such that the marriage of petitioner 1 with petitioner 2 was solemnized on 17-02-2016. Because of differences between them, they started living separately on 10-01-2018. It was almost after two years; application under Section 13 (1B) of the Hindu Marriage Act, 1955 was filed on 28-01-2021. The learned Family Court directed for counselling of the parties, which failed, regarding pursuant to which the case was posted for after six months in accordance with Section 13B (2) of the Act, 1955 which provides for cooling period. The petitioners then filed an application for waiving off the cooling period, which was dismissed by the impugned order. The instant writ petition was filed under Article 227 of the Constitution of India, for quashing the impugned order.
Counsel for the petitioners submitted that application under Section 13 (1B) of the Act, 1955, praying for decree of divorce on mutual consent has been filed jointly. It was further submitted that the impugned order has been erroneously passed in light of the law laid down in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.
In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 it was laid down
“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 :
(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;
(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.
The Court observed that the facts present in this case disclose that the petitioners have resided more than one year separately, therefore, the requirement under Section 13B (1) of the Act, 1955, has completed. Thereafter, the petition under Section 13 (1B) of the Act, 1955 has been filed on 28-01-2021, therefore, a further requirement of cooling period of six months under Section 13B(2) of the Act, 1955, has also been completed. Further, counselling procedure is also over, which has failed.
The Court thus held that, under these circumstances, and as per the guidelines laid down by the Supreme Court in Amardeep Singh (Supra), it was a fit case, in which, the petitioners should have been benefited with the relief as they had prayed for.
In view of the above, impugned order was set aside and petition was allowed.[Raju Kumar In re, 2021 SCC OnLine Chh 564, decided on 15-03-2021]
Arunima Bose, Editorial Assistant has reported this brief.