WPMS/2403/2021 of GUDDI DEVI Vs SANJAY DANGWAL

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) 2403 of 2021

Smt. Guddi Devi

.......….......Petitioner

-versus-

Sri Sanjay Dangwal

....……...Respondent

Date of hearing and Judgement : 18.11.2021

Advocates appeared in the case:-

For Appellant : Mr. B. D. Pande and Mr. Rakshit Joshi, learned counsel for the petitioner

For Respondents counsel for the respondent.

: Mr. Harshit Sanwal, learned

Sri S.K.Mishra, J.

1.Heard Mr. B. D. Pande, learned counsel for the writ petitioner and Mr. Harshit Sanwal, learned counsel for the respondent. petitioner and Mr. Harshit Sanwal, learned counsel for the respondent.

2.In this application, the petitioner being the petitioner before the learned Principal Judge, Family Court, Dehradun in Original Suit No. 783 of 2021, Smt. Guddi Devi vs. Shri Sanjay Gangwal, has assailed the order passed by the learned Judge, Family Court on 18.09.2021 rejecting joint petition filed by both the parties, i.e. the petitioner and the respondent for waiver of the statutory cooling period of six months as envisaged under Section 13-B of the Hindu Marriage Act, 1955 (herein after referred to as “the Act”). The petitioner prays for issuance of writ of certiorari before the learned Principal Judge, Family Court, Dehradun in Original Suit No. 783 of 2021, Smt. Guddi Devi vs. Shri Sanjay Gangwal, has assailed the order passed by the learned Judge, Family Court on 18.09.2021 rejecting joint petition filed by both the parties, i.e. the petitioner and the respondent for waiver of the statutory cooling period of six months as envisaged under Section 13-B of the Hindu Marriage Act, 1955 (herein after referred to as “the Act”). The petitioner prays for issuance of writ of certiorari

quashing the order impugned dated 18.09.2021 in the aforesaid proceedings and to allow the interlocutory application filed by the petitioner dispensing and waiving the cooling period of six months before grant of decree of divorce by mutual consent.

3.The learned Judge, Family Court after taking into consideration, some of the cases, have come to conclusion that there should be separation of at least 1 & 1/2 years (18 months) before the date of first motion. He has taken into consideration three judgements, they are as follows: consideration, some of the cases, have come to conclusion that there should be separation of at least 1 & 1/2 years (18 months) before the date of first motion. He has taken into consideration three judgements, they are as follows:

(a)Soni Kumari vs. Deepak Kumar, 2016 (1) Civil Courts Cases 038 (SC) Courts Cases 038 (SC)

(b)Dhale Ram vs. Pushpa Devi, 2018 (2) Civil Court Cases 851 (H.P.) Cases 851 (H.P.)

(c)Smt. Nisha Yadav vs. Sandeep Yadav, 2020 (1) Civil Court Cass 141 (Rajasthan) Civil Court Cass 141 (Rajasthan)

4.The learned counsel appearing for both the parties submitted that in the case of Amardeep Singh vs. Harveen Kaur (2017) 8 SCC 746, the Hon’ble Supreme Court has laid down four different criteria to be considered and the learned Judge has considered only one of the criteria. For better appreciation, it is quoted below: submitted that in the case of Amardeep Singh vs. Harveen Kaur (2017) 8 SCC 746, the Hon’ble Supreme Court has laid down four different criteria to be considered and the learned Judge has considered only one of the criteria. For better appreciation, it is quoted below:

“Where the Court dealing with the matter, it is satisfied that case is made out to waive the statutory period under Section 13-B of the Act, it can do so after considering the following: satisfied that case is made out to waive the statutory period under Section 13-B of the Act, it can do so after considering the following:

(i) The statutory period of six months specified in Section 13B(2), in addition to the statuary Section 13B(2), in addition to the statuary

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 the direction by any further efforts: 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 the 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. differences including alimony, custody of child or any other pending issues between the parties.

(iv)The waiving period will only prolong their agony.”

5.In this case, it is apparent from the record that the 3[rd]and 4[th] conditions are satisfied that the parties have genuinely settled their differences including alimony, custody of children and other pending issues between the parties and the cooling period will only prolong their agony. It is stated at the bar that the respondent has already settled in Germany and there is no chance of his staying in India. Any further prolonging of the proceedings will only add to their difficulties, which in turn, will also affect the children. It is also assured by both the counsels to this Court that there is no pending issues regarding alimony and the children shall remain with the wife-petitioner and the expenses will be borne by the husband-respondent. and 4[th] conditions are satisfied that the parties have genuinely settled their differences including alimony, custody of children and other pending issues between the parties and the cooling period will only prolong their agony. It is stated at the bar that the respondent has already settled in Germany and there is no chance of his staying in India. Any further prolonging of the proceedings will only add to their difficulties, which in turn, will also affect the children. It is also assured by both the counsels to this Court that there is no pending issues regarding alimony and the children shall remain with the wife-petitioner and the expenses will be borne by the husband-respondent.

6.In that view of the matter, this Court is of the opinion that there is no real impediment in allowing the application for waiver of the cooling period. that there is no real impediment in allowing the application for waiver of the cooling period.

7.In view of the above, the writ petition is allowed. writ of certiorari is issued quashing the order date 18.09.2021. The petition filed on 07.09.2021, jointly by the petitioner and the respondent in the original civil proceedings is allowed. The cooling period is hereby waived in this case. The parties are relegated to the court of Judge, Family Court, so that he may consider the matter and record the compromise in the presence of the parties duly identified by their respective counsels and pass appropriate orders under Section 13-B of the Hindu Marriage Act,1955. of certiorari is issued quashing the order date 18.09.2021. The petition filed on 07.09.2021, jointly by the petitioner and the respondent in the original civil proceedings is allowed. The cooling period is hereby waived in this case. The parties are relegated to the court of Judge, Family Court, so that he may consider the matter and record the compromise in the presence of the parties duly identified by their respective counsels and pass appropriate orders under Section 13-B of the Hindu Marriage Act,1955.

8.The petitioner is directed to appear before the learned Judge, Family Court on 25[th] November, 2021 and produce the certified copies of this Order. Learned Judge, Family Court may take up the case on the same day or may adjourned the case to be taken up after few days and he shall record the compromise through Video Conferencing mode as the respondent is residing in Germany. Judge, Family Court on 25[th] November, 2021 and produce the certified copies of this Order. Learned Judge, Family Court may take up the case on the same day or may adjourned the case to be taken up after few days and he shall record the compromise through Video Conferencing mode as the respondent is residing in Germany.

9.There shall be no order as to the costs.

10.Urgent certified copy of this order be granted on proper application today itself. application today itself.

KKS

(S.K.Mishra) Judge