Dali Gupta vs Prakash Agrawal

5. Heard Shri Brajesh Shukla, learned counsel for the appellant and Shri Shiv Avtar Sharma, learned counsel for the respondent.

6. Present appeal has been filed under Section 19 of the Family Courts Act, 1984, arising from the order dated 23.05.2024 passed by learned Principal Judge, Family Court, Prayagraj, whereby the learned trial court has rejected the application to waive cooling-off period with respect to the proceeding instituted under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act').

7. Undeniably the parties were married on 26.4.2016. They disclosed to the learned trial court that they are living separately since 16.4.2018. Six years have passed without cohabitation. There are no children born to them. Perusal of the joint petition filed under Section 13-B of the Act reveals that there is no room for settlement surviving. The parties had reached a point of no return. Accordingly, with the help of their friends and family they have reached a conclusion to dissolve their marriage against payment of permanent alimony of Rs. 2,50,000/- to the appellant.

8. Recently in Vijay Agarwal vs. Suchita Bansal; 2023 8 ADJ 484, this Court, in occasion to consider the law in respect to waiver. It 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 13 B (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 32 A 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.

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."

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

6. After 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 petition. 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.

7. Insofar as the Supreme Court interpreted the statutory provision and laid down the law, that decision of the Supreme Court may never have been described as an exercise referable to Article 142 of the Constitution of India.

8. Article 142 of the Constitution of India enables the Supreme Court to do complete justice in the facts of any case. However, by very nature of that power, whenever exercised, that Court never seeks to lay down any proposition or principle of law. Here, to the contrary, the Supreme Court laid down the law in no uncertain terms. It took note of the statutory provision contained under Section 13B of the Act, 1955 and interpreted it to reach the conclusion that the same was was directory and that the discretion to waive the stipulation of time would vest with the Court dealing with the second joint motion petition, seeking to dissolve the marriage between those parties."

9. Accordingly, we find that the ground for waiver is duly made out. The learned trial court has erred in overlooking that aspect of the matter in directing the parties to seek mediation and wait for a period of six months.

10. Accordingly, the appeal is allowed.

11. The period of cooling off is waived. The second motion petition may be filed by the parties within a period of one week. It is expected that the learned trial court would act expediently and ensure that the proceedings are concluded as expeditiously as possible preferably within a period of two weeks, subject to due compliance and cooperation by the parties.

Order Date :- 7.8.2024

SA

(Donadi Ramesh, J.) (S.D. Singh, J.)