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Divorce| Rajasthan HC Sets Aside Family Court's Order Refusing To Waive 6 Months Cooling-Off Period In Absence Of Documentary Evidence

ANIRUDH VIJAY
13 May 2022 3:30 PM GMT
Nothing In Law Which Permits A Candidate To Apply Under ‘Divorcee Female’ Category In The Expectancy That Decree Would Be Granted: Rajasthan High Court
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The Court noted that the parties had submitted on oath that they have been living separately since July 2018.

The Rajasthan High Court observed that a family court had committed illegality in rejecting the divorce application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence, especially when the parties have already stated on oath through affidavit that both of them are living separately since July, 2018.

Notably, a joint application was filed by the parties before the Family court for waving six months' cooling-off period as provided under Section 13-B of the Hindu Marriage Act of 1955 on 26.04.2022, however, the Family court rejected the same while observing that the parties have failed to produce documents to prove the fact that both of them are living separately since July, 2018.

Justice Vijay Bishnoi, while allowing the writ petition and setting aside the order passed by the Family Court, observed,

"In the present case, when the parties have already stated on oath through affidavit that both of them are living separately since July, 2018, the court below has committed illegality in rejecting the application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence."

The court also waived the statutory period of six months specified under Section 13-B(2) of the Hindu Marriage Act of 1955.

Further, the court directed the parties to appear before the Family court on 24.05.2022. A direction was also issued to the Family Court to pass a decree of divorce in accordance with law.

Facts

The parties submitted a joint application under Section 13-B of the Act of 1955 seeking divorce by mutual consent. As per the application, marriage of the parties was solemnized on 07.02.2013 at Village Bota (Raghunathgarh), District Pali. It is mentioned in the application that out of the said wedlock, no issue is born to the parties. The parties lived together as husband and wife for quite some time, but later on differences cropped up and both of them started living separately from July, 2018 and now it is not possible for them to live together as husband and wife.

As per the application which was duly supported by an affidavit of both the parties that both of them are living separately from July, 2018 and since then, there is no relation between them. It is also stated that the petitioner has already paid alimony amount to the respondent and it is agreed by the respondent that she will not claim any further amount from the petitioner in future. The application was filed before the court below on 19.02.2022 and the next date in the matter is fixed on 20.08.2022. The Family Court had rejected the application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence. Aggrieved by the same, a writ petition has been preferred by the petitioner-husband.

The counsels for the parties submitted that both the petitioner and the respondent have stated on oath through affidavit that they are living separately since July, 2018 and, in such circumstances, there is no requirement of producing any documentary evidence to prove the aforesaid fact. Reliance was also placed on Amardeep Singh v. Harveen Kaur [(2017) 8 SCC 746].

Adv. Pravin Vyas appeared on behalf of the petitioner-husband while Adv. Kanishk Singhv appeared on behalf of the respondent-wife.

Case Title: Raju Singh v. Twinkle Kanwar

Citation: 2022 LiveLaw (Raj) 160

Click Here To Read Order/ Judgment




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