Ashish Kumar Jain v. Priya Jain

Order 32-A Rule 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.

20.

Since we are of the view that the 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."

¶29In the considered view of this Court in absence of the satisfaction of the Court on four points stated above, the period of six months after presentation of the first motion under Section 13-B(1) of the Hindu Marriage Act cannot be waived off.

¶30In this case also, the parties have not made any averment, neither in the application nor in the affidavit, on which this Court could satisfy itself about the four points that the Hon'ble Supreme Court has referred to in paragraph no. 19 of its judgment in re 'Amardeep Singh' case (supra). However, this Court is of the view that when there is no possibility of cohabitation and marriage of parties has irretrievably broken, when the parties have entered a compromise then there is no point for keeping the parties entangled with each other in cobweb of matrimony, therefore, the Court directs the parties to file fresh petition in the Family Court under Section 13-B(1) and the petition under Section 13-B(2) of the Hindu Marriage Act simultaneously with an application for waiving off the statutory period of six months under Section 13-B(2) of the Hindu Marriage Act in the light of the judgment of Hon'ble Supreme Court in re 'Amardeep Singh' case (supra).

¶31At the same time, it would not be out of

place to note that in the appeals before this Court under Section 19 of the Family Courts Act, the parties to the appeal at times make the application for grant of relief of dissolution of marriage by decree of divorce on the ground of mutual consent at the appellate stage itself without making an application for amendment to the main petition to convert the same in petition under Section 13-B (1) of the Hindu Marriage Act. The applications moved by the parties for this relief do not spell out the facts and circumstances of the case on the basis of which Court could satisfy itself about presence of grounds to waive off the period of six months in the light of the judgment of Hon'ble Supreme Court in re 'Amardeep Singh' case (supra).

¶32This Court, therefore, is of the view that if such an application is made at the appellate stage then it should be with an amendment to the original petition for grant of the dissolution of marriage by amending the original petition before the Family Court in consonance with the requirement of Section 13-B(1) and petition under Section 13-B(2) of the Hindu Marriage Act accompanied with an application for waiving off the statutory period of six months after presentation of the petition under Section 13-B(1) of the Hindu Marriage Act for the purpose of acceptance of petition under Section 13-B(2) of the Hindu Marriage Act.

¶33If such applications are moved by the

parties in appeal by making all the necessary averments on the basis of which this Court could satisfy itself on the points elaborated in paragraph no. 19 of the judgment of Hon'ble Supreme Court in re 'Amardeep Singh' case (supra) then the marriage of the parties can be dissolved by decree of divorce with mutual consent at the appellate stage also.

¶34In view of the above observations, this appeal is disposed of with liberty to the parties to file the petition for dissolution of marriage by decree of divorce with mutual consent under Section 13-B(1) &

(2) of the Hindu Marriage Act with an application for waiving off the statutory period of six months in the Family Court.

¶35A copy of this order be sent to all the Courts of the State for compliance as well as to the Director, Uttarakhand Judicial and Legal Academy, Bhowali Nainital to see that these observations with directions should be brought in the knowledge of the judges who come there for refresher courses and induction training.

(Vivek Bharti Sharma, J.) (Manoj Kumar Tiwari, A.C.J.)

05.12.2024

05.12.2024

Akash AKASH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND,

2.5.4.20=5a2e7119d3eefb9c3389d15c3446ac 8c20a28e181142c2e31d8b803058deb4ec, postalCode=263001, st=UTTARAKHAND, serialNumber=27096A1625377537A487DEE4 9224C891823FC6A0334628B21E516047ED4F 22F7, cn=AKASH Date: 2025.01.06 16:30:25 +05'30'

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL JUSTICE SHRI MANOJ KUMAR TIWARI AND JUSTICE SHRI VIVEK BHARTI SHARMA First Appeal No.12 of 2021 5 December, 2024 Ashish Kumar Jain …Appellant Versus Priya Jain …Respondent Present:- Mr. Devesh Ghildiyal, Advocate for the appellant Mr. Pradeep Kumar Chauhan, Advocate for the respondent JUDGMENT: (per Shri Vivek Bharti Sharma, J.) This appeal filed by the appellant, under Section 19 of The Family Courts Act (hereinafter referred as Act), is against the judgment and order dated 29.01.2021 passed by Additional Judge, Family Court, Rishikesh, Dehradun in O.S. No.05 of 2019, whereby the suit for divorce filed by the appellant/husband was dismissed. 2. Facts of the case, in brief, are that the appellant/plaintiff filed the O.S. No.05/2019 under Section 13 of The Hindu Marriage Act, 1955 seeking decree of divorce with the averments that the marriage between the appellant/plaintiff and the respondent/defendant was solemnized on 06.07.2014 as per the Hindu Rites at Dehradun; that, out of the said wedlock a son was born, who at the time of filing of the divorce petition, was two years and ten months of age; that, for some time after marriage the behavior of respondent/defendant towards the appellant/plaintiff and his family members remained normal, but after sometime, the respondent/defendant began to talk with her mother over phone for hours; that, although, the behavior of respondent remained normal towards the appellant/plaintiff and his family members, but after her conversation with her mother, she used to quarrel with the appellant/plaintiff on petty issues; that, the respondent/defendant went to her paternal home on 28.11.2015. 3. It was also averred that the appellant/plaintiff continuously tried to contact the respondent/defendant but on 26.06.2016, the respondent/defendant sent a message to the appellant/plaintiff over the phone that now she would not return to her matrimonial home; that, the appellant/plaintiff kept on saving his married life due to which he also instituted a petition under Section 9 of the Hindu Marriage Act before the Family Court, Dehradun; that, this petition was decreed in favour of the appellant/plaintiff on 25.05.2017 but the respondent/defendant did not comply with the same. 4. On the aforesaid grounds, it was prayed by the appellant/plaintiff to grant a decree of divorce. 5. The respondent/defendant by filing her written statement admitted the fact of marriage as well as the birth of a son, however, she denied rest of the averments made in the petition. 6. It was averred by the respondent/defendant that the respondent/defendant was subjected to taunts and abuses at the hands of appellant/plaintiff and his family; that, the ornaments which she had got from her paternal home after some days of marriage, were sold by the mother of appellant/plaintiff and even the car given from the paternal side of respondent/defendant was also sold; that, on 28.11.2015 the appellant/plaintiff and his family members exerted pressure on the respondent/ defendant to bring Rs.5 lakh in cash and on being refused they all ousted the respondent/defendant from the house on 28.11.2015 itself; that, the application filed by the respondent/defendant before the Family Court under Section 125 Cr.P.C., which was decided by the Court on 17.01.2018, but the same was not deliberately complied with by the appellant/plaintiff. 7. On the basis of the pleadings of parties, three issued were framed by the court concerned as under:- i. Whether the respondent/defendant had deserted the appellant/plaintiff without any justified reason. If so, whether the same is sufficient enough to pass the decree of divorce? ii. Even after passing of decree of restitution of conjugal rights, whether the respondent/defendant did not follow that order. If so, whether the same is sufficient to pass the decree of dissolution of marriage under Section 13 (1-A)(ii) of the Act. iii. What relief the plaintiff is entitled t