CM(M)/663/2020 of SH. RISHABH JAIN Vs SMT. NITAKSHI JAIN

Digitally Signed By:DINESHSINGH NAYALSigning Date:24.01.202111:18:37

*INTHEHIGHCOURTOFDELHIATNEWDELHIDate of Decision: 22[nd]January, 2021

CM(M) 663/2020

SH. RISHABH JAIN..... PetitionerThrough:Mr. Randhir Jain & Mr. DhanajaiJain, Advocates along with Petitionerin person.

versus

SMT. NITAKSHI JAINThrough:Respondent in person.

..... Respondent

CORAM:JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1.This hearing has been done through video conferencing.

2.Mr. Rishabh Jain and Ms. Nitakshi Jain, the parties in the presentmatter were married on 28[th]November, 2019. It is their case that they couldnot live together even for period of two months after their marriage andthey started living separately since January, 2020 itself. Various efforts weremade to reconcile their disputes with the intervention of family. However,the same failed.

3.A petition under Section 9 of the Hindu Marriage Act, 1955(hereinafter “HMA”) for restitution of conjugal rights was also filed.However, the parties continued to live separately. Finally, with theintervention of friends and family, memorandum of settlement was enteredinto by the parties on 27[th]June, 2020 by which all their disputes wereresolved. The said settlement has been placed on record. It is signed by boththe parties along with their parents. The said memorandum of settlement issigned by family members of both sides.

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4.Both the parties have appeared before this Court and they confirm thatthe memorandum of settlement has been entered into by them.

5.The parties after having arrived at the settlement, filed joint petitionunder Articles 32 and 142 of the Constitution of India being W.P.(C)736/2020. However, the Supreme Court did not entertain the petition andparties were given liberty to approach the Family Court. The order dated 11[th]August, 2020 passed by the Supreme Court reads as under:

“We are declining this petition filed under Article32 read with Article 142 of the Constitution ofIndia. The writ petition is dismissed.Liberty to move Family Court in accordance withlaw.”

6.The parties then approached the Principal Judge, Family Courts,(South-East), Saket, New Delhi on 5[th]September, 2020 under Section 13Bof the HMA for divorce by mutual consent. Along with the said petition,they also filed an application under Section 14 of the HMA for waiver of theperiod of one year of marriage which is required to have passed before filinga divorce petition under Section 14 of the HMA, along with waiver of theperiod of 6 months before second motion can be filed under Section 13Bof the HMA. The said application was dismissed by Principal Judge, FamilyCourts, (South East), Saket, New Delhi on 24[th]September, 2020 on theground that the period required as per law had not expired. The said orderwas assailed before this Court in CM(M) 572/2020 and vide order dated 17[th]November, 2020, the ld. Single Judge of this Court records as under:

“CM(M) 572/2020

This petition has been filed by the petitionerchallenging the order dated 24.09.2020 passed bythe learned Principal Judge, (South-East), Family

CM (M) 663/2020

Digitally Signed By:DINESHSINGH NAYALSigning Date:24.01.202111:18:37

Court in HMA No.383/2020.

It is the case of the petitioner that the partieswere married as per Hindu rights and ceremonieson 28.11.2019 and have been living separatelysince 10.05.2020. The parties are of young ageand wish to restart their lives. The parties havealso arrived at an amicable settlement in thisregard.

The respondent who appears in person andhas been identified by the learned counsel for thepetitioner, submits that there is no chance ofreapprochement in the present case.

Thelearnedcounselforthepetitionerfurther submits that in any case, one year periodwould expire on 27.11.2020.

Inview ofthe submissions made,theImpugned Order is set aside and the petition isrestored back to its original number to be listedbefore the learned Family Court on 1[st]December,2020.

The petition is disposed of in the aboveterms.

copy of this order be supplied to thelearnedcounselsforthepetitionerandtherespondent who appears in person, on their e-mailaddresses provided.”

7.After the petition was restored, the parties appeared before thePrincipal Judge, (South-East), Family Courts, Saket. However, vide theimpugned order dated 9[th]December, 2020, the matter was merely adjournedto 18[th]May, 2021 by observing that neither the one year period as underSection 14 of the HMA nor the six months’ period as under Section 13B ofthe HMA could be waived in any manner whatsoever.

8.Mr. Randhir Jain, ld. counsel ld. counsel for the Petitioner relies uponthe two judgments passed in Amardeep Singh v. Harveen Kaur, (2017) 8

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SCC 746 and Sonali Soni v. Ujjwal Sethi, [CM (M)262/2020, decided on26[th]February, 2020] following the Supreme Court judgment. It is hissubmission that on the strength of these judgments, and the fact that theparties have been living separately for more than year, the bar of one yearno longer applies. In any event, he submits that even the six months’ periodcan be waived in view of the observation in Amardeep Singh (supra) by theSupreme Court.

9.This Court has interacted with both the parties. The Respondent is 26years of age and the Petitioner is 28 years of age. Both are educated and areduly employed. They submit that considering their age, they would like thatthe present marriage be dissolved immediately and decree of divorce begranted in order to enable them to move forward with their respective lives.The Court is satisfied that the parties do not wish to live together any more.The marriage was solemnized in November, 2019 but the parties have beenliving separately for more than one year now. Considering this fact, thewaiver of one year of separate living is no longer required to be grantedinasmuch as the said period has already passed. Thus, this Court deems itappropriate to record that the first motion stands granted.

10.Insofar as the six months’ period is concerned, in terms of thejudgment in Amardeep Singh (supra), the six months’ period is held to bedirectory and not mandatory. This has also been followed by the ld. SingleJudge in Sonali Soni (supra).

11.Mr. Jain, ld. counsel submits that an application for waiver of the saidperiod is pending before the Family Court. Accordingly, in view of theabove facts and circumstances, the following directions are issued:

i)The period of one year having already passed, the first motion

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is hereby granted;

ii)The application for waiver of six months’ period under Section13B(2) of the HMA having been filed shall be considered by theFamily Court and an appropriate order shall be passed within periodof one month from today, considering the judgements set out above.

12.The parties are permitted to appear before the Family Court on 1[st]February, 2021. On the said date, Family Court would consider theapplication for waiver of six months’ period and pass appropriate orders.

13.The petition is disposed of in these terms. All pending applications arealso disposed of.

PRATHIBA M. SINGHJUDGE

JANUARY 22, 2021Rahul/Ap

CM (M) 663/2020