SH. RISHABH JAIN  Vs SMT. NITAKSHI JAIN

CM (M) 663/2020 Page 1 of 5$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22ndJanuary, 2021
+ CM(M) 663/2020
SH. RISHABH JAIN ….. Petitioner
Through: Mr. Randhir Jain & Mr. Dhanajai
Jain, Advocates along with Petitioner
in person.
versus
SMT. NITAKSHI JAIN ….. Respondent
Through: Respondent in person.
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 present
matter were married on 28thNovember, 2019. It is their case that they could
not live together even for a period of two months after their marriage and
they started living separately since January, 2020 itself. Various efforts were
made 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 the
intervention of friends and family, a memorandum of settlement was entered
into by the parties on 27thJune, 2020 by which all their disputes were
resolved. The said settlement has been placed on record. It is signed by both
the parties along with their parents. The said memorandum of settlement is
signed by family members of both sides.
2021:DHC:253CM (M) 663/2020 Page 2 of 54. Both the parties have appeared before this Court and they confirm that
the memorandum of settlement has been entered into by them.
5. The parties after having arrived at the settlement, filed a joint petition
under Articles 32 and 142 of the Constitution of India being W.P.(C)
736/2020. However, the Supreme Court did not entertain the petition and
parties were given liberty to approach the Family Court. The order dated 11th
August, 2020 passed by the Supreme Court reads as under:
“We are declining this petition filed under Article
32 read with Article 142 of the Constitution of
India. The writ petition is dismissed.
Liberty to move Family Court in accordance with
law.”
6. The parties then approached the Principal Judge, Family Courts,
(South-East), Saket, New Delhi on 5thSeptember, 2020 under Section 13B
of the HMA for a divorce by mutual consent. Along with the said petition,
they also filed an application under Section 14 of the HMA for waiver of the
period of one year of marriage which is required to have passed before filing
a divorce petition under Section 14 of the HMA, along with a waiver of the
period of 6 months before a second motion can be filed under Section 13B
of the HMA. The said application was dismissed by Principal Judge, Family
Courts, (South East), Saket, New Delhi on 24thSeptember, 2020 on the
ground that the period required as per law had not expired. The said order
was assailed before this Court in CM(M) 572/2020 and vide order dated 17th
November, 2020, the ld. Single Judge of this Court records as under:
“CM(M) 572/2020
This petition has been filed by the petitioner
challenging the order dated 24.09.2020 passed by
the learned Principal Judge, (South-East), Family
2021:DHC:253CM (M) 663/2020 Page 3 of 5Court in HMA No.383/2020.
It is the case of the petitioner that the parties
were married as per Hindu rights and ceremonies
on 28.11.2019 and have been living separately
since 10.05.2020. The parties are of a young age
and wish to restart their lives. The parties have
also arrived at an amicable settlement in this
regard.
The respondent who appears in person and
has been identified by the learned counsel for the
petitioner, submits that there is no chance of
reapprochement in the present case.
The learned counsel for the petitioner
further submits that in any case, one year period
would expire on 27.11.2020.
In view of the submissions made, the
Impugned Order is set aside and the petition is
restored back to its original number to be listed
before the learned Family Court on 1stDecember,
2020.
The petition is disposed of in the above
terms.
A copy of this order be supplied to the
learned counsels for the petitioner and the
respondent who appears in person, on their e-mail
addresses provided.”
7. After the petition was restored, the parties appeared before the
Principal Judge, (South-East), Family Courts, Saket. However, vide the
impugned order dated 9thDecember, 2020, the matter was merely adjourned
to 18thMay, 2021 by observing that neither the one year period as under
Section 14 of the HMA nor the six months’ period as under Section 13B of
the HMA could be waived in any manner whatsoever.
8. Mr. Randhir Jain, ld. counsel ld. counsel for the Petitioner relies upon
the two judgments passed in Amardeep Singh v. Harveen Kaur, (2017) 8
2021:DHC:253CM (M) 663/2020 Page 4 of 5SCC 746 andSonali Soni v. Ujjwal Sethi, [CM (M)262/2020, decided on
26thFebruary, 2020] following the Supreme Court judgment. It is his
submission that on the strength of these judgments, and the fact that the
parties have been living separately for more than a year, the bar of one year
no longer applies. In any event, he submits that even the six months’ period
can be waived in view of the observation in Amardeep Singh (supra) by the
Supreme Court.
9. This Court has interacted with both the parties. The Respondent is 26
years of age and the Petitioner is 28 years of age. Both are educated and are
duly employed. They submit that considering their age, they would like that
the present marriage be dissolved immediately and a decree of divorce be
granted 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 been
living separately for more than one year now. Considering this fact, the
waiver of one year of separate living is no longer required to be granted
inasmuch as the said period has already passed. Thus, this Court deems it
appropriate to record that the first motion stands granted.
10. Insofar as the six months’ period is concerned, in terms of the
judgment in Amardeep Singh (supra), the six months’ period is held to be
directory and not mandatory. This has also been followed by the ld. Single
Judge in Sonali Soni (supra).
11. Mr. Jain, ld. counsel submits that an application for waiver of the said
period is pending before the Family Court. Accordingly, in view of the
above facts and circumstances, the following directions are issued:
i) The period of one year having already passed, the first motion
2021:DHC:253CM (M) 663/2020 Page 5 of 5is hereby granted;
ii) The application for waiver of six months’ period under Section
13B(2) of the HMA having been filed shall be considered by the
Family Court and an appropriate order shall be passed within a period
of one month from today, considering the judgements set out above.
12. The parties are permitted to appear before the Family Court on 1st
February, 2021. On the said date, Family Court would consider the
application for waiver of six months’ period and pass appropriate orders.
13. The petition is disposed of in these terms. All pending applications are
also disposed of.
PRATHIBA M. SINGH
JUDGE
JANUARY 22, 2021
Rahul/Ap
2021:DHC:253