MANU/RH/0287/2019

Equivalent Citation: III(2019)DMC 52Raj., 2019(2)RLW1066(Raj.), 2019 (3) WLN 497 (Raj.)

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

D.B. Civil Misc. Appeal No. 5881 of 2018
Decided On: 07.02.2019
Appellants: Rishi Khandelwal
Vs.
Respondent: Nidhi
Hon'ble Judges/Coram:
Mohammad Rafiq and Goverdhan Bardhar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Party-in-Person
For Respondents/Defendant: Party-in-Person
DECISION
Mohammad Rafiq, J.
1. The appellant-husband, Rishi Khandelwal and the respondent-wife, Mrs. Nidhi are
present in person in the Court and they have also furnished photo copy of their
identity cards.
2 . The appeal being D.B. Civil Misc. Appeal No. 5881/2018 on behalf of the
appellant-husband has been filed under Section 19 of the Family Court Act, 1984,
challenging the judgment and decree dated 09.10.2018 passed by the learned Judge,
Family Court No. 1, Jaipur (for short 'the Family Court'), whereby the joint petition
filed by the appellant-husband and respondent-wife under Section 13B of the Hindu
Marriage Act, 1955 (for short 'the Act'), has been dismissed.
3 . The appellant submits that he has paid a sum of Rs. 14,00,000/- in cash to the
respondent-wife and a duly renewed demand draft bearing no. 011959 dated
07.02.2019 amounting to Rs. 1,00,000/- has been handed over to the respondent-
wife present in the Court. They both submitted that they applied for mutual decree of
divorce by filing petition under Section 13B of the Act before the Family Court, but
the same has been dismissed vide order dated 09.10.2018 on the premise that
according to provisions of Section 13B of the Act, they have to live separately for at
least for one year. They jointly prayed that this appeal be allowed and judgment
dated 09.10.2018 passed by the Family Court be set aside and petition under Section
13B of the Act filed by them be allowed and the marriage solemnized between the
appellant and the respondent may be dissolved by decree of divorce.
4. Perusal of the impugned judgment indicates that petition under Section 13B of the
Act, which was supported by affidavits of the parties was filed on 16.03.2018 wherein
it was stated that they have been living separately since 12.11.2017. The Family
Court has dismissed the petition being not maintainable as the requisite period of one
year was still not completed. The period of one year was not complete when the
petition under Section 13B of the Act was filed by the parties before the Family Court.

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Even when the Family Court passed the impugned order, the said period was not
complete. But as of now, period of one year has been completed on 11.11.2018.
Even otherwise, this Court has the power to waive the cooling period of one year in
view of 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.
5. In view of above, we are persuaded to allow the appeal. The appeal is accordingly
allowed. The judgment and decree dated 09.10.2018 passed by the Family Court No.
1, Jaipur in Case No. 432/2018 is set side. The petition filed by the parties under
Section 13B of the Act before the Family Court is allowed and the marriage between
the appellant-husband and the respondent-wife is therefore dissolved by mutual
consent with immediate effect. Decree of divorce be prepared accordingly.
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