Dinesh Kumar vs Sakshi Attri

Sandeep Sharma, J

Having regard to the nature of order proposed to be passed in the instant petition, requirement of notice is dispensed with.

Instant petition lays challenge to order dated 30.9.2020 passed by Family Court, Solan, District Solan, Himachal Pradesh in Case No. 146-5/6 of 2020, whereby prayer having been made on behalf of the parties through email, for dispensing with 'cooling period' of six months as required under S.13B of the Hindu Marriage Act, came to be dismissed.

Precisely, the grievance of the petitioner, as has been raised in the present petition, is that the learned family court below, while passing order dated 11.9.2020, has not afforded opportunity of hearing to the parties, before considering their prayer to dispense with cooling period of six months.

Having perused the impugned order dated 30.9.2020 (Annexure P-4), this Court finds that though none was present on behalf of the parties at the time of passing of impugned order, but learned Court below has yet recorded in the impugned order the word, 'heard', before rejecting the prayer made on behalf of the parties. Otherwise also, learned Court below, without assigning any reasons, has simply stated that it does not intend to dispense with 'cooling period' of six months as required under S.13B of the Hindu Marriage Act. It appears that the learned Court below before passing the impugned order, neither afforded opportunity of hearing to the parties nor took into consideration the law laid down by Hon'ble Apex Court as well as this court in a catena of judgments, wherein it has been held that 'cooling period' of six months as required under S.13B of the Hindu Marriage Act can be waived of if there is no possibility of reproachment inter se parties and marriage has broken beyond repair. In this regard, reliance is placed on a judgment rendered by Hon'ble Apex Court in Priyanka Khanna v. Amit Khanna, (2011) 15 SCC 612, wherein Hon'ble Apex Court has held as under:-

"7. We also see form the trend of the litigations pending between the parties that the relationship between the couple has broken down in a very nasty manner and there is absolutely no possibility of a rapprochement between them even if the matter was to be adjourned for a period of six months as stipulated under Section 13-B of the Hindu Marriage Act.

We also see from the record that the first litigation had been filed by the respondent husband on 2.6.2006 and a petition for divorce had also been filed by him in the year, 2007. We therefore, feel that it would be in the interest of justice that the period of six months should be waived in view of the above facts."

Consequently, in view of the detailed discussion made hereinabove, petition at hand is allowed. Order dated 30.9.2020 (Annexure P- 4) passed by learned Presiding Officer, Family Courts, District Solan, Himachal Pradesh in Case No. 146-5/6 of 2020 is set aside. Learned Court below is directed to decide/consider the application/prayer of the parties for dispensing with 'cooling period' of six months in terms of law laid down by Hon'ble Apex Court (supra). Learned Counsel appearing for the petitioner undertakes to cause presence of both the parties before learned Court below, on 18.11.2020, enabling it to proceed further with the matter. Needless to say, learned Court below would afford due opportunity of hearing to the parties, before passing any order.

The petition stands disposed of in the aforesaid terms, alongwith all pending applications.