Rajasthan High Court - Jaipur
Smt. Vinita Verma D/O Shri Sitaram Verma ... vs Tejas Gutka S/O Shri Chandulal Anandji ... on 7 September, 2020
Bench: Sabina, Chandra Kumar Songara
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 2270/2020
Smt. Vinita Verma D/o Shri Sitaram Verma W/o Shri Tejas
Gutka, Aged About 37 Years, R/o P.No. 23, Jai Bhawani Vihar,
First, Govindpura, Kalwar Road, Jaipur (Raj.)
----Appellant
Versus
Tejas Gutka S/o Shri Chandulal Anandji Gutka, Aged About 44
Years, R/o Building No. 1, Atlantika Residency, Anjul Phatak,
Bhiwandi, Mumbai (Maharashtra) And Oshuwal Residency,
Oshuwal Road, Nairobi, Kenya.
----Respondent
For Appellant(s) : Mr. Satish Kumar Khandal, Advocate For Respondent(s) : Mr. Himmat Singh Bhikarwar, Advocate HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA Order 07/09/2020 Appellant has filed the appeal challenging the order dated 30.7.2020, whereby, the learned Family Court had not granted exemption of six months waiting period in a petition filed by the parties under Section 13B of Hindu Marriage Act, 1955.
Learned counsel for the parties have submitted that keeping in view the peculiar facts and circumstances of the case, the waiting period of six months in the petition filed by the parties under Section 13B(2) of the Hindu Marriage Act was liable to be waived. In-fact, respondent is resident of Kenya and has to return to Kenya. Due to pendency of the petition, respondent is unable to return to Kenya. Parties have settled all their disputes. Parties had (Downloaded on 09/09/2020 at 10:16:39 PM) (2 of 3) [CMA-2270/2020] got married on 9.2.2017 and are residing separately since 6.3.2018. Thus, by now, parties are residing separately for about two and a half years.
In support of their arguments, learned counsel for the parties have placed reliance on the decision of Apex Court in the case of Amardeep Singh vs. Harveen Kaur (Civil Appeal No. 11158/2017, SLP (Civil) No. 20184/2017) decided on 12.9.2017, wherein it was held as under:-
"18. 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.
19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.
21. 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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(3 of 3) [CMA-2270/2020] In the present case, parties are residing separately for the last two and a half year. Parties have settled all their matrimonial disputes. Respondent is resident of Kenya and has to return to Kenya after the disposal of the petition. In the facts and circumstances of the present case, it would be just and expedient to waive the waiting period of six months as provided in Section 13B(2) of Hindu Marriage Act, 1955.
Accordingly, the appeal is allowed. Waiting period of six months specified in Section 13B(2) of Hindu Marriage Act, 1955 is waived. Parties would be at liberty to move to the concerned court for further appropriate orders.
(CHANDRA KUMAR SONGARA),J (SABINA),J
Anil Makwana /83
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