MANU/RH/1118/2019

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

D.B. Civil Miscellaneous Appeal No. 4707/2019
Decided On: 24.09.2019
Appellants: Ashutosh Agarwal
Vs.
Respondent: Anjali Mittal
Hon'ble Judges/Coram:
Mohammad Rafiq, Actg. C.J. and Narendra Singh Dhaddha, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Sudesh Bansal, Ashutosh Agarwal and Party-in-
Person
For Respondents/Defendant: Mohd. Adil, Anjali Mittal and Party-in-Person
JUDGMENT
1. 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.
2. 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 filed under Section 13-B of the Hindu
Marriage Act, 1955, for grant of decree of divorce by mutual consent, has been
dismissed.
3. 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 Hindu 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 Hindu 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.
4. 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

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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.
5. 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.
6. 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.,
MANU/SC/0511/2011 : (2011) 14 SCC 614, Devinder Singh Narula Vs. Meenakshi
Nangia - MANU/SC/0665/2012 : (2012) 8 SCC 580, and Amardeep Singh Vs. Harveen
Kaur - MANU/SC/1134/2017 : (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 possibility of
parties resuming cohabitation and there are chances of alternative rehabilitation.
7. Learned counsel for the parties have also relied on the judgment of this Court in
Smt. Palak Jain Vs. Naveen Rawat, MANU/RH/0097/2019 : (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.
8 . 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.
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