# Rohitash Singh v. Ruchi

- **Citation:** (2026) 2 ILRA 1260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-18
- **Case number:** First Appeal No. 989 of 2025
- **Bench:** Arindam Sinha, Satya Veer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rohitash-singh-v-ruchi-54156
- **Pages:** 6

## Text

1260 INDIAN LAW REPORTS ALLAHABAD SERIES

32. The trial court is directed to decide the suit within six months, from the date of receipt of
certified copy of this order, without granting unnecessary adjournment to any party.

33. It is further made clear that the trial court is not bound by the observations made by this
Court in this order and is free to form its opinion, in accordance with law, on the basis of pleadings
of the parties and evidence adduced by them during trial.

34. However in the facts and circumstances of the case, the parties shall bear their respective
costs. Office is directed to prepare the decree accordingly.
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(2026) 2 ILRA 1260
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2026

BEFORE

THE HON'BLE ARINDAM SINHA, J.
THE HON'BLE SATYA VEER SINGH, J.

First Appeal No. 989 of 2025

Rohitash Singh ...Appellant
Versus
Ruchi ...Respondent

Issue for Consideration
Matter pertains to the determination of whether the rejection of a joint petition for divorce by mutual consent
u/s 13-B of Hindu Marriage Act, 1955, on the ground of delay in filing the second motion beyond the
stipulated period of eighteen months, is legally sustainable, particularly in light of the judicial interpretation of
s. 13-B(2) as being directory in nature and the continued subsistence of mutual consent between the parties.

Headnotes
Hindu Marriage Act, 1955 - s. 13-B - Family Courts Act, 1984 - s. 19(2) - Divorce by mutual
consent - Second Motion Delay - Cooling-off Period - Technical Delay - Effect - Appeal -
Maintainability - The appellant -husband preferred the instant appeal assailing the judgment of
Family Court whereby a joint petition for dissolution of marriage by mutual consent u/s 13-B of
Hindu Marriage Act, 1955 was rejected on the ground that the second motion had not been filed
within the statutory period of eighteen months from the date of presentation of the first motion
- It was contended before the High Court that despite such delay, the mutual agreement
between the parties to dissolve the marriage continued to subsist and both parties remained ad
idem in seeking separation on agreed terms - The appellant, supported by the respondent - wife,
urged that the delay in filing the second motion was a mere technicality and ought not to defeat
the substantive relief, particularly in view of judicial precedents holding the relevant provision to
be directory in nature - The Family Court, however, having treated the delay as fatal, declined to
grant the decree, thereby giving rise to the instant appeal before the High Court.

Held: It appears from impugned judgment that the first motion was duly made - The second motion was
delayed but the first motion not withdrawn in the meantime - There is otherwise nothing in judgment to
indicate the Family Court was not satisfied after hearing the parties and after making such inquiry as it
thought fit that the marriage had been solemnized - As the Appeal Court, sitting in adjudication of continuing
2 All. Rohitash Singh Vs. Ruchi
1261
cause, after being satisfied reverse impugned judgment and direct the matrimonial case be restored to its file
and number, to enable the parties to file the second motion within two weeks of restoration - The Family
Court will thereafter deal with the case on both the motions filed, in accordance with law - On omission to file
the second motion upon notice of restoration, the case will be dismissed forthwith - Thus, Appeal as
maintainable in spite of bar u/s 19(2) of Family Courts Act, 1984 because though judgment was on a petition
invoking s. 13-B, it was not passed on consent and it matters little that parties supported each other in the
instant appeal - Accordingly, appeal allowed. [Paras 10 to 12] (E-13)

Case Law Cited
Amardeep Singh v. Harveen Kaur reported in (2017) 8 SCC 746; Amit Kumar v. Suman Beniwal reported
in (2023) 17 SCC 648; Shilpa Sailesh v. Varun Sreenivasan reported in (2023) 14 SCC 231, decided on
1st May, 2023; - referred to

List of Acts
Hindu Marriage Act, 1955; Family Courts Act, 1984

List of Keywords
First Appeal; Delay in filing of appeal; Condonation of delay; Defective appeal; Joint petition for divorce by
mutual consent; Rejection of petition; Second motion not filed within stipulated period; First motion u/s 13-B;
Statutory time frame; Cooling-off period; Outer limit of eighteen months; Directory not mandatory;
Subsistence of agreement between parties; Dissolution of marriage; Decree of divorce; Restoration of
matrimonial case; Continuation of proceedings; Withdrawal of consent; Non-withdrawal of first motion;
Appellate jurisdiction; Maintainability of appeal; Bar u/s 19 of Family Courts Act; Direction to Family Court;
Compliance within stipulated time; Appeal allowed.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. - 989 of 2025

From the Judgment and Order dated 21.04.2025 passed by the Family Court, Sambhal (Bheem Nagar) in
Claim Petition / 590 / 2022

Appearances for Parties
Adv. for the Appellant:
Sandeep Kumar Srivastava

Adv. for the Respondent:
Brijesh Kumar Pandey

(Delivered by Hon'ble Arindam Sinha, J.)

1. The appeal was moved before us as defective on 12th November, 2025. The defect was
delay of 161 days in presentation of it. We had condoned the delay to admit the appeal. Mr.
Sandeep Kumar Srivastava, learned advocate appears on behalf of appellant-husband and Mr.
Brijesh Kumar Pandey, learned advocate for respondent wife.

2. Appellant's contention is, both respondent and he are aggrieved by judgment dated 21st
April, 2025 of the Family Court rejecting their joint petition for divorce by mutual consent on
finding, the second motion was not made within 18 months after filing of the first motion (the joint
petition).
1262 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The learned advocates had submitted and maintain their submission that agreement between
the parties still subsists. Their clients want to go their separate ways on mutually agreed terms. This
technicality of delay in making the second motion cannot be looked at as fatal to their cause.
Reliance was placed on judgment of the Supreme Court in Amardeep Singh vs. Harveen Kaur
reported in (2017) 8 SCC 746 for declaration of law that sub section (2) in section 13-B, Hindu
Marriage Act, 1955 is directory and not mandatory.

4. Section 13-B in Hindu Marriage Act is reproduced below.

"13B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for
dissolution of marriage by a decree of divorce may be presented to the district court by both the
parties to a marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they
have been living separately for a period of one year or more, that they have not been able to live
together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of
the presentation of the petition referred to in sub-section (1) and not later than eighteen months
after the said date, if the petition is not withdrawn in the meantime, the court shall, on being
satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage
has been solemnised and that the averments in the petition are true, pass a decree of divorce
declaring the marriage to be dissolved with effect from the date of the decree."

(emphasis supplied)

5. In Amardeep Singh (supra), the Supreme Court was dealing with spouses in a marriage,
who wanted immediate mutual divorce without waiting for the cooling off period provided in subsection (2) of section 13-B. Paragraph 20 from the judgment is reproduced below.

"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."

6. A later decision of the Supreme Court in Amit Kumar vs. Suman Beniwal reported in
(2023) 17 SCC 648 considered Amardeep Singh (supra). The Bench went on to further say that
factors mentioned in Amardeep Singh (supra) are illustrative and not exhaustive. The stated
factors are those which the Court is obliged to take note of. If all the conditions mentioned in
Amardeep Singh (supra) are fulfilled, the Court would necessarily have to exercise its discretion to
waive the statutory waiting period under section 13-B(2). Paragraph 20 from Amit Kumar (supra)
is reproduced below.

"20. The factors mentioned in Amardeep Singh vs. Harveen Kaur, in para 19 are
illustrative and not exhaustive. These are factors which the court is obliged to take note of. If all
2 All. Rohitash Singh Vs. Ruchi
1263
the four conditions mentioned above are fulfilled, the court would necessarily have to exercise its
discretion to waive the statutory waiting period under Section 13-B(2) of the Marriage Act."

7. Then came judgment of a stronger Bench of the Supreme Court in Shilpa Sailesh vs.
Varun Sreenivasan reported in [(2023) 14 SCC 231 (date of decision 1st May, 2023)]. The Bench
of five learned Judges considered, inter-alia, sub-sections (1) and (2) in section 13-B. Paragraph 25
is reproduced below.

"25. Sub-section (2) to Section 13-B of the Hindu Marriage Act provides that after the
first motion is passed, the couple/parties would have to move to the court with the second motion, if
the petition is not withdrawn in the meanwhile, after six months and not later than eighteen months
of the first motion. No action can be taken by the parties before the lapse of six months since the
first motion. When the second motion is filed, the court is to make an inquiry, and on satisfaction
that the averments made in the petition are true, a decree of divorce is granted. Clearly, the
legislative intent behind incorporating Sub-section (2) to Section 13-B of the Hindu Marriage
Act is that the couple/party must have time to introspect and consider the decision to separate
before the second motion is moved."

(emphasis supplied)

After considering aforesaid decision in Amardeep Singh (supra) the stronger Bench
expressed its opinion as would appear from paragraph 33, reproduced below.

"33. In our opinion, Section 13-B of the Hindu Marriage Act does not impose any
fetters on the powers of this Court to grant a decree of divorce by mutual consent on a joint
application, when the substantive conditions of the Section are fulfilled and the Court, after
referring to the factors mentioned above, is convinced and of the opinion that the decree of
divorce should be granted."

(emphasis supplied)

8. Though both in Amardeep Singh (supra) and in Amit Kumar (supra) the Supreme Court
had declared the law to be that sub-section (2) in section 13-B was directory but we are to see if it
can be said to appear from paragraph 33 of Shilpa Sailesh (supra), the stronger Bench was
referring, by implication, to power of the Supreme Court under article 142 in the Constitution. Our
view is, by paragraph 33 in [Shilpa Sailesh (supra)] it cannot be said the earlier declarations of law
were diluted. This is because the stronger Bench immediately thereafter said, inter-alia, multiplicity
of litigations can restrict and block solutions, as a settlement has to be holistic and comprehensive,
given that the objective and purpose is to enable the parties to cohabit and live together, or if they
decide to part ways to have a new beginning and settle down to live peacefully. Paragraphs 35 and
36 from Shilpa Sailesh (supra) are reproduced below.

"35. Therefore, in B.S. Joshi and Ors. v. State of Haryana, this Court, notwithstanding
that Section 320 of the Code of Criminal Procedure does not permit compounding of an offence
under Section 498-A IPC, has held that the High Court, exercising the power under Section 482
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
CrPC, may quash prosecutions even in non-compoundable offences when the ends of justice so
require. This view has been affirmed by the three- Judge Bench in Gian Singh v. State of Punjab
and reiterated by another three-Judge Bench in Jitendra Raghuvanshi v. Babita Raghuvanshi.

36. The reason is that the courts must not encourage matrimonial litigation, and
prolongation of such litigation is detrimental to both the parties who lose their young age in
chasing multiple litigations. Thus, adopting a hypertechnical view can be counter productive as
pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the
court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony,
affliction, and torment to an end. In this regard, the courts only have to enquire and ensure that
the settlement between the parties is achieved without pressure, force, coercion, fraud,
misrepresentation, or undue influence, and that the consent is indeed sought by free will and
choice, and the autonomy of the parties is not compromised. The latter two decisions in Gian Singh
and Jitendra Raghuvanshi observe that the inherent power on the High Court under Section 482
CrPC is wide and can be used/wielded to quash criminal proceedings to secure the ends of justice
and prevent abuse of the process of the court, albeit it has to be exercised sparingly, carefully, and
with caution."

(emphasis supplied)

9. We are convinced on law declared to be that the provisions in sub-section (2) of section 13B are directory and not mandatory. Also true is that the provisions cannot be said to be selectively
directory inasmuch as, while the cooling off period can be waived, the outer limit cannot. We are of
further view that outer limit of 18 months from presentation of first motion was provided in subsection (2) of section 13-B with object of presumption that on omission to make the second motion
within time there has been withdrawal of consent. The mechanism provided by the section clearly
indicates that the Court must be satisfied on mutual consent of the parties, truly stated in the joint
petition for dissolution of the marriage with effect from the date of decree passed. In the case
before us, parties are still in agreement regarding them wanting to honorably part ways and move
ahead with their lives.

10. It appears from impugned judgment that the first motion was duly made. The second
motion was delayed but the first motion not withdrawn in the meantime. There is otherwise nothing
in impugned judgment to indicate the Family Court was not satisfied after hearing the parties and
after making such inquiry as it thought fit that the marriage had been solemnized. We as the appeal
Court, sitting in adjudication of the continuing cause, being so satisfied reverse impugned judgment
and direct that the matrimonial case be restored to its file and number, to enable the parties to file
the second motion within two weeks of the restoration. The Family Court will thereafter deal with
the case on both the motions filed, in accordance with law. It goes without saying, on omission to
file the second motion upon notice of the restoration, as directed above, the case will be dismissed
forthwith.

11. We add that we have entertained the appeal as maintainable in spite of the bar under subsection (2) of section 19 of Family Courts Act, 1984 because though impugned judgment was on a
2 All. Ishita Agarwal Vs. Gopal Krishna Mittal
1265
petition invoking section 13-B, it was not passed on consent and it matters little that parties
supported each other before us in the appeal.

12. The appeal is allowed and disposed of. Registry to communicate the judgment to the
Family Court.
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(2026) 2 ILRA 1265
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2026

BEFORE

THE HON'BLE ARINDAM SINHA, J.
THE HON'BLE SATYA VEER SINGH, J.

First Appeal No. 1137 of 2026

Ishita Agarwal ...Appellant
Versus
Gopal Krishna Mittal ...Respondent

Issue for Consideration
Issue pertains to the determination of whether an appeal u/s 19 of Family Courts Act, 1984 is maintainable
against an interlocutory order passed by the Family Court u/s 26 of Hindu Marriage Act, 1955, particularly
where such order merely grants interim visitation rights to a parent in respect of a minor child during the
pendency of matrimonial proceedings.

Headnotes
Family Courts Act, 1984 - s. 19 - Hindu Marriage Act, 1955 - ss. 13, 26, 28(2) - Appeal -
Maintainability - Interlocutory order - Custody of minor child - Scope - The appellant, being the
mother of a minor child aged about five years, assailed an interim order passed by the Family
Court in pending matrimonial proceedings between the parties, whereby the respondent-father
was granted visitation rights to meet the child once every month on the third Saturday within
the premises of the District Legal Services Authority - The said order was passed on an
application moved by the respondent u/s 26 of Hindu Marriage Act, 1955 seeking access,
interaction through video conferencing, and interim custody of minor - It was contended by the
appellant that similar directions for virtual interaction had already been issued in proceedings
under the domestic violence law, and thus the instant appeal was maintainable - However, the
respondent raised a preliminary objection asserting that the impugned order was purely
interlocutory in nature, having been passed during the pendency of divorce petition, and
therefore not appealable u/s 19 of Family Courts Act, 1984.

Held: Impugned judgment/order is but an interim order/direction - It is not a provision made in the decree
because such decree is yet to come on adjudication of the matrimonial dispute, still pending - Where the
Court passes a judgment and there is a decree, for example, directing dissolution of the marriage and also
providing directions for custody, a party to the proceeding can choose to appeal only against the directions for
custody by virtue of s. 26 and s. 28(2) - Such appeal would be maintainable u/s 19 in Family Courts Act, 1984
- The order being interlocutory in nature, thus, appeal not maintainable - Dismissed. [Paras 7, 8] (E-13)

Case Law Cited