# Ajit Singh Yadav v. Smt. Neelam Yadav

- **Citation:** (2025) 1 ILRA 383
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-24
- **Case number:** Matters Under Article 227 No. 12692 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajit-singh-yadav-v-smt-neelam-yadav-52861
- **Pages:** 5

## Headnote

Civil Law-The Hindu Marriage Act, 1955Section 13B(20) -The Constitution of
India, 1950-Article 227---Cooling off the
period of six months as provided in Section 13B(2) is not mandatory but directory---In the
present case, both the parties are living
separately since 20.12.2021 and also filed
divorce petition jointly. Apart that, earlier
attempts of mediation was failed, but later on,
in another proceeding, mediation took place
between the parties with agreement to dissolve
the marriage and withdraw the criminal cases
pending between them. Therefore, under such
facts, there is no occasion to direct the
petitioner to wait for cooling off period as
provided in Section 13-B(2) ---Impugned order
set aside---Principal Judge, Family Court, is
directed to proceed with the divorce petition
waiving off the cooling period of six months as
provided in Section 13-B(2) (Para 9 & 13)

Petition allowed. (E-15)

List of Cases cited:

Amardeep Singh Vs Harveen Kaur; (2017) 8
Supreme Court cases 746

## Text

1 All. Ajit Singh Yadav Vs. Smt. Neelam Yadav
383
Bengaluru and the second appellant from
Toranto, Canada. In this regard, we can
also briefly advert to the decisions relied
upon
by
the
learned
counsel
for
appellants."

13. Now coming to the present case.
Facts of this case are squarely similar to the
facts of the judgments cited above, therefore,
this Court has no reason to have a different
opinion. It is required on the part of Court to
permit the petitioner to appear through virtual
mode as prayed.

14. Therefore, under such facts of the
case as well as law laid down by the Courts,
impugned order dated 16.05.2024 is bad and
hereby set aside.

15. Writ petition is accordingly allowed.

16. No order as to costs.

17. Principal Judge, Family Court,
Firozabad is directed to permit the petitioner
to appear through video conferencing or any
other electronic mode and be allowed to
participate in further proceeding.

18. It is open for the Principal Judge,
Family Court, Firozabad to verify the identity
of petitioner by the respondent while he is
appearing through electronic mode.
----------
(2025) 1 ILRA 383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2025

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 12692 of 2024

Ajit Singh Yadav ...Petitioner
Versus
Smt. Neelam Yadav ...Respondent

Counsel for the Petitioner:
Upendra Nath Yadav

Counsel for the Respondent:

Civil Law-The Hindu Marriage Act, 1955Section 13B(20) -The Constitution of
India, 1950-Article 227---Cooling off the
period of six months as provided in Section 13B(2) is not mandatory but directory---In the
present case, both the parties are living
separately since 20.12.2021 and also filed
divorce petition jointly. Apart that, earlier
attempts of mediation was failed, but later on,
in another proceeding, mediation took place
between the parties with agreement to dissolve
the marriage and withdraw the criminal cases
pending between them. Therefore, under such
facts, there is no occasion to direct the
petitioner to wait for cooling off period as
provided in Section 13-B(2) ---Impugned order
set aside---Principal Judge, Family Court, is
directed to proceed with the divorce petition
waiving off the cooling period of six months as
provided in Section 13-B(2) (Para 9 & 13)

Petition allowed. (E-15)

List of Cases cited:

Amardeep Singh Vs Harveen Kaur; (2017) 8
Supreme Court cases 746

(Delivered by Hon'ble Neeraj Tiwari, J.)

1.
Heard
learned
counsel
for
petitioner.

2. Present petition has been filed
seeking following reliefs:-

"i. Set aside the impugned order
dated 11.09.2024 passed by the Principal
Judge, Family Court, Ghazipur in Hindu
Marriage Petition No. 551 of 2024, (Ajit
Singh Yadav vs. Smt. Neelam Yadav)
384 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 13-B of Hindu Marriage Act,
by which the court below has rejected the
application dated 10.09.2024."

3. Brief facts of the case are that
marriage of petitioner and respondent was
solemnized on 11.12.2020. After some
time, some differences took place between
the parties and they have decided to live
separately from 20.12.2021. All attempts
made for reconciliation have been failed
between the parties. As there was no scope
for reconciliation between the parties,
therefore, they have filed divorce petition
with specific averment that they are living
separately since 20.12.2021. The said
petitioner was registered as Hindu Marriage
Petition No. 551 of 2024, under section
13(B) of the Hindu Marriage Act, 1955
(hereinafter referred to as 'Act, 1955')
before Principal Judge, Family Court,
Ghazipur.
Thereafter,
order
dated
30.07.2024 has been passed directing the
parties to appear before the mediation
centre
on
10.09.2024
and
further
01.02.2025 was fixed for hearing/evidence.
Both the parties have appeared before
mediation
centre
on
10.09.2024
and
thereafter, mediation proceedings were
dropped. As long date of 01.02.2025 was
fixed, therefore, parties have moved
application no. 11(c) dated 20.09.2024 for
waiver off statutory period of six months as
provided under Section 13-B(2) Act, 1955,
which was rejected vide impugned order
dated 11.09.2024.

4. Learned counsel for petitioner
submitted that once there is no scope of
mediation between the parties, in the light
of judgment of Apex Court in the matter of
Amardeep Singh vs. Harveen Kaur;
(2017) 8 Supreme Court cases 746, it is
required on the part of Court to waive off
the cooling period of six months.

5. He next submitted that in another
Criminal Case No. 652 of 2021, matter was
again referred to mediation centre and this
time both the parties have appeared before
the mediation centre and an agreement
dated 01.08.2024 took place between them
to dissolve their marriage. In the said
agreement, it was also admitted that out of
total settlement amount of Rs. 13 lakh,
respondent had already received Rs. 8 lakh
and remaining Rs. 5 lakh shall be given to
her after decree of divorce. He firmly
pointed out that under such facts, impugned
order is bad and liable to be set aside.

6. I have considered submissions made
by counsel for petitioner and perused the
records as well as copy of agreement dated
01.08.2024
before
Mediation
and
Reconciliation Centre, Ghazipur.

7. From the perusal of records, it is
apparently clear that as on date, parties are
living separately and there is no scope of
reconciliation
between
the
parties.
Agreement dated 01.08.2024 also provides
very same facts that now parties are agreed
to withdraw all criminal cases between
them and further proceeded with divorce
petition to obtain decree of divorce.

8. In the case of Amardeep Singh
(Supra), Apex Court has taken same view.
Relevant paragraph nos. 14 to 20 are being
quoted below:-

"14. Learned Amicus Curiae
submitted that waiting period enshrined
under Section 13-B(2) of the Act is
directory and can be waived by the court
where
proceedings
are
pending,
in
exceptional
situations.
This
view
is
supported by judgments of the Andhra
Pradesh High Court in K. Omprakash v. K.
Nalini, Karnataka High Court in Roopa
1 All. Ajit Singh Yadav Vs. Smt. Neelam Yadav
385
Reddy vs. Prabhakar Reddy, Delhi High
Court in Dhanjit Vadra vs. Smt. Beena
Vadra and Madhya Pradesh High Court in
Dinesh Kumar Shukla vs. Smt. Neeta.
Contrary view has been taken by Kerala
High Court in M. Krishna Preetha vs. Jayan
Moorkkanatt. It was submitted that Section
13B(1) relates to jurisdiction of the Court
and the petition is maintainable only if the
parties are living separately for a period of
one year or more and if they have not been
able to live together and have agreed that
the marriage be dissolved. Section 13B(2)
is procedural. He submitted that the
discretion to waive the period is a guided
discretion by consideration of interest of
justice where there is no chance of
reconciliation and parties were already
separated for a longer period or contesting
proceedings for a period longer than the
period mentioned in Section 13B(2). Thus,
the Court should consider the questions:

i) How long parties have been
married?

ii)
How
long
litigation
is
pending?

iii) How long they have been
staying apart?

iv)
Are
there
any
other
proceedings between the parties?

v) Have the parties attended
mediation/conciliation?

vi) Have the parties arrived at
genuine settlement which takes care of
alimony, custody of child or any other
pending issues between the parties?

15. The Court must be satisfied
that the parties were living separately for
more than the statutory period and all
efforts at mediation and reconciliation have
been tried and have failed and there is no
chance of reconciliation and further waiting
period will only prolong their agony.

16.
We
have
given
due
consideration to the issue involved. Under
the traditional Hindu Law, as it stood prior
to the statutory law on the point, marriage
is a sacrament and cannot be dissolved by
consent. The Act enabled the court to
dissolve marriage on statutory grounds. By
way of amendment in the year 1976, the
concept of divorce by mutual consent was
introduced.
However,
Section
13B(2)
contains a bar to divorce being granted
before six months of time elapsing after
filing of the divorce petition by mutual
consent. The said period was laid down to
enable the parties to have a rethink so that
the court grants divorce by mutual consent
only if there is no chance for reconciliation.

17. The object of the provision is
to enable the parties to dissolve a marriage
by consent if the marriage has irretrievably
broken down and to enable them to
rehabilitate them as per available options.
The amendment was inspired by the
thought that forcible perpetuation of status
of matrimony between unwilling partners
did not serve any purpose. The object of the
cooling off the period was to safeguard
against a hurried decision if there was
otherwise possibility of differences being
reconciled.
The
object
was
not
to
perpetuate a purposeless marriage or to
prolong the agony of the parties when there
was no chance of reconciliation. Though
every effort has to be made to save a
marriage, if there are no chances of reunion
and
there
are
chances
of
fresh
rehabilitation, the Court should not be
powerless in enabling the parties to have a
better option.

18. In determining the question
whether
provision
is
mandatory
or
directory, language alone is not always
decisive. The Court has to have the regard
to the context, the subject matter and the
object of the provision. This principle, as
formulated
in
Justice
G.P.
Singh's
"Principles of Statutory Interpretation" (9th
386 INDIAN LAW REPORTS ALLAHABAD SERIES
Edn., 2004), has been cited with approval
in Kailash versus Nanhku and ors. as
follows: (SCC pp. 496-97, para 34).

"34........The study of numerous
cases on this topic does not lead to
formulation of any universal rule except
this that language alone most often is not
decisive, and regard must be had to the
context, subject-matter and object of the
statutory
provision
in
question,
in
determining whether the same is mandatory
or directory. In an oft-quoted passage Lord
Campbell said: "No universal rule can be
laid down as to whether mandatory
enactments shall be considered directory
only or obligatory with an implied
nullification for disobedience. It is the duty
of courts of justice to try to get at the real
intention of the legislature by carefully
attending to the whole scope of the statute
to be considered." (p. 338)

"For
ascertaining
the
real
intention of the legislature', points out
Subbarao, J. 'the court may consider inter
alia, the nature and design of the statute,
and the consequences which would follow
from construing it the one way or the other;
the impact of other provisions whereby the
necessity of complying with the provisions
in question is avoided; the circumstances,
namely, that the statute provides for a
contingency of the non-compliance with
the provisions; the fact that the noncompliance with the provisions is or is not
visited by some penalty; the serious or the
trivial consequences, that flow therefrom;
and above all, whether the object of the
legislation will be defeated or furthered'. If
object of the enactment will be defeated by
holding the same directory, it will be
construed as mandatory, whereas if by
holding it mandatory serious general
inconvenience will be created to innocent
persons without very much furthering the
object of enactment, the same will be
construed as directory." (pp. 339-40)

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 13B(2),
it can do so after considering the following
:

i) the statutory period of six
months specified in Section 13B(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
XXXIIA
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 concerned
Court.

20. Since we are of the view that
the period mentioned in Section 13B(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. "
1 All. Hari Shankar Vs. Rakesh Kumar
387

9. Facts of this case are fully covered
with the parameters laid down by the Apex
Court in Amardeep Singh (Supra). In the
present case, both the parties are living
separately since 20.12.2021 and also filed
divorce petition jointly. Apart that, earlier
attempts of mediation was failed, but later
on, in another proceeding, mediation took
place between the parties with agreement to
dissolve the marriage and withdraw the
criminal cases pending between them.
Therefore, under such facts, there is no
occasion to direct the petitioner to wait for
cooling off period as provided in Section
13-B(2) of Act, 1955.

10. Therefore, under such facts of the
case as well as law laid down by the Apex
Court
in
Amardeep
Singh
(Supra),
impugned order dated 11.09.2024 is bad
and hereby set aside.

11. Writ petition is accordingly,
allowed.

12. No order as to costs.

13. Principal Judge, Family Court,
Ghazipur is directed to proceed with the
divorce petition waiving off the cooling
period of six months as provided in Section
13-B(2) of Act, 1955.
----------
(2025) 1 ILRA 387
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 15637 of 2024

Hari Shankar ...Petitioner
Versus
Rakesh Kumar ...Respondent
Counsel for the Petitioner:
Pankaj Agarwal

Counsel for the Respondent:
Akanksha Gaur

Civil
Law
-
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 21(1)(a) - Release
application - Bonafide need - Tenant's
plea that landlord's son already running
business independently in two other shops
-
GST
documents
showing
son
as
proprietor held irrelevant as they related
to period prior to institution of release
application - No document of relevant
year filed to establish son's independence
- Cancellation of GSTIN in son's name in
2018
-
Relevance
of
documentary
evidence is to be judged with reference to
date of institution of case-Landlord's need
to settle son in business held genuine -
Finding
of
Prescribed
Authority
and
Appellate Court affirming bonafide need
not perverse - Petition dismissed. (Paras
10 and 11)

HELD:
From the perusal of the documents that have
been
brought
on
record
by
means
of
supplementary affidavit filed by petitioner, he
admits that these were the only documents in
the form of GST receipts that were led in
evidence and evidence is always said to be
relevant and cogent to return a finding on facts
and issues if it relates to a fact position as to
the consideration of a point on the date of
institution of the case. Relevancy of documents
as to the facts in issue would therefore, would
be determinable as to status on the date of
institution of the case. In the present case I find
that the document that has been lead in
evidence by the petitioner in support of the
averment made in the written St.ment that son
was independently settled in a business in the
name of Sanskar Traders were not of the year
2020 and onwards while the release for bona
fide needs was set up in the year 2020 for the
first time. Any document that showed that GST
receipts were issued in the name of Sanskar
Traders with Akash Varshney as proprietor of
the firm would have been relevant had it been