Usha Rajput vs. Rajesh Rajput

The High Court Of Madhya Pradesh MP-2372-2021

(USHA RAJPUT Vs RAJESH RAJPUT)

Jabalpur, Dated : 01-10-2021

Shri Nitin Gupta, learned counsel for the petitioner.

Shri Ajay Mehta, learned counsel for the respondent.

Heard.

Digitally signed by SUSHEEL KUMAR

Date: 2021.10.01 17:44:12 IST

SAN Signature Not Verified

JHARIYA

The present petition under Article 227 of the Constitution has been filed by the petitioner being aggrieved by an order dated 16.07.2021 passed by the Family Court, Jabalpur in RCSHM/680/2021, whereby, learned Family Court has refused to waive the cooling period in the case of divorce by mutual consent.

Factual matrix giving rise to this petition is that marriage of the petitioner and respondent was solemnized on 21.04.2015 as per Hindu rites and rituals. Due to some differences, as there is no possibility for them to live together, therefore, they have filed an application for divorce on mutual consent before the Family Court. The first motion statement was recorded on 24.06.2021 and fixed the case for second motion on 06.01.2022. However, as the parties are living separately with effect from 25.09.2017, the applicant had filed an application under Section 151 of CPC for waiving of the statutory period of six months, but learned Family Court has rejected the application vide impugned order.

Learned counsel for the petitioner has submitted that learned Family Court has not considered the fact that first motion statement of parties were already recorded on 24.06.2021 and the mediation proceedings have also been failed and, there is no likelihood in future for the parties to live with each other. The parties have genuinely settled their differences including alimony, custody of son and any other pending issues between the parties and, therefore, waiting period will only prolong their agony.

Singh vs. Harveen Kaur, 2017 (8) SCC 746, wherein the Hon'ble Supreme Court has held that the period mentioned in Section 13-B of the Hindu Marriage Act is not mandatory but directory, it will open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility for the parties to resume cohabitation and there are chances of alternative rehabilitation. Therefore, the learned counsel for the petitioner has prayed for setting aside the impugned order and to direct the Family Court to consider the application for divorce expeditiously.

Per contra, learned counsel for the respondent did not oppose the submissions made by learned counsel for the petitioner and has submitted that there is no possibility for the parties to live together and they have filed an application for divorce on mutual consent. Learned counsel for the respondent has also agreed for waiving off cooling period of six months and to decide the application for divorce expeditiously.

From a perusal of the record, it is seen that an application for divorce o n mutual consent was filed by both the parties. The parties have amicably settled their dispute including alimony, custody of son and there is no other pending issued between the parties, a part of the amount of alimony has already been paid to the petitioner by the respondent. They are living separately since 25.09.2017. The parties have categorically stated that there is no possibility for them to live together anymore.

The Hon'ble Supreme Court in the case of Amardeep Singh (supra) has also held that waiving off cooling period of six months is within the discretion of the Court and the same can be exercised taking into consideration of the facts and circumstances of the case.

At this stage, a joint prayer has been made by learned counsel for both the parties that they may be directed to appear before the Family Court on 20.10.2021 for recording their statements.

Considering the aforesaid, the impugned order dated 16.07.2021 is hereby set aside. Learned Family Court is directed to decide the case finally

on the next date of hearing after giving opportunity of hearing to both the parties. The parties will appear before the Family Court on 20.10.2021 and record their statements. 3 MP-2372-2021

With the aforesaid observations/directions, the Misc. Petition stands allowed and disposed of.

C.C. as per rules.

(RAJENDRA KUMAR (VERMA)) JUDGE

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