Sreehari P. Kartha v. Smt. Neetika Kukreja

Court No. - 39 Case :- FIRST APPEAL No. - 1282 of 2023 Appellant :- Sreehari P. Kartha Respondent :- Smt. Neetika Kukreja Counsel for Appellant :- Abhishek Tiwari Hon'ble Saumitra Dayal Singh,J. Hon'ble Shiv Shanker Prasad,J.

¶1Heard Sri Abhishek Tiwari, learned counsel for the appellant, Sri Atul Khaneja, learned counsel for the respondent and perused the record. We have also greatly interacted with the parties who are present before the Court.

¶2Present appeal has been filed under Section 19 of the Family Courts Act, 1984, arising from the order of the learned Principal Judge, Family Court, Ghaziabad dated 6.11.2023 in Original Case No. 2755 of 2023 (Sreehari P. Kartha Vs. Smt. Neetika Kukreja). By that order, the learned court below has rejected the application filed by the parties, seeking waiver of cooling period of six months before proceeding with the second motion of the petition filed by the parties under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act') to dissolve their marriage.

¶3Having heard learned counsel for the parties and having perused the record, we have also interacted with them, briefly. It is undoubted that the parties got known to each other through matrimonial site. They got married on 10.10.2022. For reasons of cultural/ideological differences, they parted company on

25.10.2022 and have been living separately since then. While, the appellant is working as Human Resource Manager, abroad, the respondent discloses that she holds a degree in education and was earlier engaged as a teacher at a school. Both agree that they have no common ground as may allow them any hope of reviving their matrimonial relationship.

¶4More than a year has past since they parted company. In such circumstances, the parties disclose to have filed a joint petition under Section 13-B of the Act to dissolve their marriage on

31.10.2023 i.e. after more than a year of separation.

¶5Again, undisputably, there is no child born from the marriage. The appellant wants to go back abroad on 2nd December, 2023 and wishes to resume his work, whereas the respondent expresses desire to stay back and continue with her life here.

¶6In Vijay Agarwal Vs. Smt. Suchita Bansal, 2023 (8) ADJ 484, this Court has observed as under : "4. The issue involved is no longer res integra. In Amardeep Singh Vs. Harveen Kaur (2017), 8 SCC 746, it was held as below : "19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B (2), it can do so after considering the following :

(i) The statutory period of six months specified in Section 13 B(2), in addition to the statutory 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 32A 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 that 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;

(iv) The waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned."

¶20Since we are of the view that the period mentioned in Section 13B(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."

¶7That principle of law laid down by the Supreme Court has not been departed from, in any subsequent or other decision of that Court.

¶8After considering the provisions of law, the Supreme Court had thus clarified that though the provision of Section 13B(2) postulates a cooling period of six months, that stipulation of time was not mandatory. Not only the provision stipulating six months' time period was held to be directory, further, the Supreme Court held that the discretion to waive that stipulation of time would vest in the Court dealing with the second motion. The intent of the decision of the Supreme Court and the interpretation of the law made by it are clear as daylight. Once the Supreme Court observed that the stipulation of time was directory and that the discretion to waive it may be exercised in the individual facts and circumstances of each case, by the Court, clearly, it had left no manner of doubt to arise with any party, less so the Court itself, as to who may exercise the discretion.

¶9In the present case also, we find, the parties have lived separately for more than a year before filing the first motion petition. Their efforts to reconcile their differences though made privately i.e. with the help of friends and family, also appear to have failed. At present, it appears, through dissolution of their marriage, the parties seek peace for themselves. There is no child born to the marriage and there are no other proceedings shown to be pending between them. In such circumstances, on one hand, no useful purpose may ever be achieved in delaying the final outcome of the proceedings, at the same time, pendency of such proceeding may only prolong the agony of the parties.

¶10For the reasons contained above, the present appeal is allowed. The order dated 6.11.2023 is set aside. The cooling period is waived. The parties are at liberty to proceed with the second motion petition proceedings at the earliest. Subject to such compliance being made, the learned court below may make best effort to conclude the proceeding, as expeditiously as possible, preferably by 8th December, 2023 as the appellant has to necessarily leave the country in connection with work, thereafter. Order Date :- 28.11.2023 CS/- (Shiv Shanker Prasad,J.) (S.D. Singh,J.) High Court of Judicature at Allahabad