# Smt. Shyamshri v. Sumant Kumar

- **Citation:** (2022) 10 ILRA 1050
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** First Appeal No. 723 of 2022
- **Bench:** Surya Prakash Kesarwani, Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shyamshri-v-sumant-kumar-47665
- **Pages:** 5

## Headnote

Civil Law - Hindu Marriage Act, 1955 -
Section 13 B (2) - relaxing the period of
second motion of six months - period
mentioned in Section 13 B(2) of the Hindu
Marriage Act, 1955 is not mandatory but
directory and it is open to the Court to
exercise its discretion in the facts and
circumstances of each case - For exercise
of the discretion to waive the statutory
waiting period of six months for moving
the motion for divorce under Section 13B
(2) of the Hindu Marriage Act, the Court
would consider the following amongst
10 All. Smt. Shyamshri Vs. Sumant Kumar
1051
other factors: (i) the length of time for
which the parties had been married; (ii)
how long the parties had stayed together
as husband and wife; (iii) the length of
time the parties had been staying apart;
(iv) the length of time for which the
litigation had been pending; (v) whether
there
were
any
other
proceedings
between the parties;(vi) whether there
was any possibility of reconciliation; (vii)
whether there were any children born out
of the wedlock; (viii) whether the parties
had freely, of their own accord, without
any coercion or pressure, arrived at a
genuine settlement which took care of
alimony, if any, maintenance and custody
of children, etc." (Para 12)

Parties application u/s 13 B of the Act, 1965
for relaxing the period of second motion of six
months rejected by the impugned order -
Both parties jointly submitted that since all
efforts for mediation/reconciliation to reunite
the parties have failed and there is no
likelihood of success in that direction, and the
parties
have
genuinely
settled
their
differences
including
alimony
therefore
breathing
period
of
second
motion
as
provided in Section 13 B(2) of the Act, 1955
will only prolong their agony - Held -
impugned judgment set aside - Matter
remitted back to the Principal Judge, Family
Court, to pass an order afresh in accordance
with law (Para 12)

Allowed. (E-5)

List of Cases cited:

## Text

1050 INDIAN LAW REPORTS ALLAHABAD SERIES
Government and the Gaon Sabha" are
substituted therein."

13. On second question also, in
our view, Courts below were right in
coming to the conclusion that legality or
otherwise
of
insertion
of
names
of
purchasers in Record of Rights and deletion
of name of the plaintiff from such record
can only be decided by Revenue Court
since the names of the purchasers had
already been entered into. Only Revenue
Court can record a finding whether such an
action was in accordance with law or not
and it cannot be decided by a Civil Court.

16.The instant case is covered by
the
above
observations.
The
lower
Appellate Court has expressly stated that
the name of the plaintiff had been deleted
from Record of Rights and the names of
purchasers had been entered. The said fact
had been brought on record by the
contesting defendants and it was stated that
the plaintiff himself appeared as a witness
before the Mutation Court, admitted
execution of the sale deed, receipt of sale
consideration and the factum of putting
vendees into possession of the property
purchased by them. It was also stated that
the records revealed that the names of
contesting defendants had been mutated
into Record of Rights and the name of
plaintiff was deleted."

21. In view of ratio of law laid down
by Apex Court on the question of
maintainability of civil suit by plaintiff who
is not recorded in revenue record the civil
suit filed by plaintiff cannot be entertained
by civil Court.

22. Considering the findings of fact
recorded by both the Courts below to the
effect the plaintiff is neither owner nor
recorded in the revenue records rather
disputed plots was recorded as Navin Parti,
as such, suit is barred by Section 49 of
U.P.C.H. Act. No substantial question of
law arises in the second appeal. No
interference
is
required
against
the
impugned judgment and decree passed by
Courts below.

23. The present Second Appeal lacks
merit and same is hereby dismissed under
Order 41 Rule 11 of Civil Procedure Code
----------
(2022) 10 ILRA 1050
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

First Appeal No. 723 of 2022

Smt. Shyamshri ...Appellant
Versus
Sumant Kumar ...Respondent

Counsel for the Appellant:
Sri Jamal Ahmad Khan

Counsel for the Respondent:
Sri Rajeev Upadhyay

Civil Law - Hindu Marriage Act, 1955 -
Section 13 B (2) - relaxing the period of
second motion of six months - period
mentioned in Section 13 B(2) of the Hindu
Marriage Act, 1955 is not mandatory but
directory and it is open to the Court to
exercise its discretion in the facts and
circumstances of each case - For exercise
of the discretion to waive the statutory
waiting period of six months for moving
the motion for divorce under Section 13B
(2) of the Hindu Marriage Act, the Court
would consider the following amongst
10 All. Smt. Shyamshri Vs. Sumant Kumar
1051
other factors: (i) the length of time for
which the parties had been married; (ii)
how long the parties had stayed together
as husband and wife; (iii) the length of
time the parties had been staying apart;
(iv) the length of time for which the
litigation had been pending; (v) whether
there
were
any
other
proceedings
between the parties;(vi) whether there
was any possibility of reconciliation; (vii)
whether there were any children born out
of the wedlock; (viii) whether the parties
had freely, of their own accord, without
any coercion or pressure, arrived at a
genuine settlement which took care of
alimony, if any, maintenance and custody
of children, etc." (Para 12)

Parties application u/s 13 B of the Act, 1965
for relaxing the period of second motion of six
months rejected by the impugned order -
Both parties jointly submitted that since all
efforts for mediation/reconciliation to reunite
the parties have failed and there is no
likelihood of success in that direction, and the
parties
have
genuinely
settled
their
differences
including
alimony
therefore
breathing
period
of
second
motion
as
provided in Section 13 B(2) of the Act, 1955
will only prolong their agony - Held -
impugned judgment set aside - Matter
remitted back to the Principal Judge, Family
Court, to pass an order afresh in accordance
with law (Para 12)

Allowed. (E-5)

List of Cases cited:

1. Amardeep Singh Vs Harveen Kaur, (2017) 8
SCC 746

2. Amit Kumar Vs Suman Beniwal, (Civil Appeal
No.7650 of 2021 decided on 11.12.2021)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. &
Hon'ble Chandra Kumar Rai, J.)

1. Heard Sri Jamal Ahmad Khan,
learned counsel for the defendant -
appellant/wife and Sri Rajeev Upadhyay,
learned
counsel
for
the
plaintiff
-
respondent/husband.

2. This First Appeal under Section 19
of Family Courts Act, 1984 has been filed
praying to set aside the judgment and order
dated 01.08.2022 in Case No.1542 of 2022
(Sumant Kumar Vs. Smt. Shyamshri) under
Section 13-B of the Hindu Marriage Act,
1955, passed by the Principal Judge,
Family Court, Ghaziabad, whereby joint
application 16 Ga 2 filed by the parties for
relaxing the period of second motion of six
months, has been rejected.

Facts

3. Briefly stated undisputed facts are
that the plaintiff and the defendant were
married with each other on 02.12.2014.
Some disputes developed between them
and they started living separately since
26.12.2017. It also appears that the plaintiff
- husband filed a divorce petition No.1248
of 2019 under Section 13 of the Hindu
Marriage Act, 1955, in the Court of
Principal Judge, Family Court, Ghaziabad,
which according to both the parties;
remained pending. It appears that in the
mean time both the parties have agreed to
dissolve their marriage with consent.
Therefore, they filed a joint divorce petition
No.1542 of 2021 (Sumant Kumar Vs. Smt.
Shyamshri) under Section 13 B of the Act,
1955.

4. In paragraphs 6, 7, 8, 9 and 11 of
the aforesaid joint divorce petition under
Section 13 B, the parties has states as under
:

^^1⁄461⁄2 ;g fd oknhx.k ds fopkjksa esa
vk, erHksnksa dks lekIr djds nksuksa dks ,d lkFk
ifr iRuh ds :i esa oSokfgd thou ;kiu djus
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
ds fy;s nksuksa oknhx.k ds ifjokj okyksa o
fj'rsnkjksa rFkk lekt ds yksxksa }kjk dkQh
le>k;k x;k] fdUrq oknhx.k ds fopkjksa es bruk
vf/kd vkilh erHksn gks x;k gS fd nksuksa ,d
lkFk ifr iRuh ds :i esa jgdj oSokfgd thou
;kiu djus ds fy;s fdlh Hkh rjg ls lger ugha
gSA

1⁄471⁄2 ;g fd oknhx.k 26-12-2017 ls
vyx&vyx fuokl dj jgsa gS] blhfy, oknhx.k
ds e/; ifr iRuh ds :i esa fdlh Hkh izdkj ds
lEca/k LFkkfir ugha gq, gSA

1⁄481⁄2 ;g fd gky gh oknhx.k ds e/;
gq, vkilh le>kSrs ds vuqlkj dqy vadu jkf'k 8
yk[k ipkl gtkj :i;s esa rd gqvk gSA ftlesa 4
yk[k iPphl gtkj Mh0Mh0 la0 005315 tksfd
oknh la0 1 }kjk oknh la0 2 dks izFke eks'ku ij
vnk dj fn;k tk;sxk rFkk 'ks"k 4 yk[k iPphl
gtkj :i;s f}rh; eks'ku ij vnk fd;s tk;saxsA

1⁄491⁄2 ;g fd oknhx.k }kjk vkt fnukad
rd ,d nwljs ij fd;s x;s lHkh eqdneksa dks
izFke eks'ku ds i'pkr~ nksuksa oknhx.k }kjk okil
ys fy;k tk;sxkA

1⁄4111⁄2 ;g fd oknhx.k ds fopkjksa bruk
vf/kd erHksn vk x;k gS fd vkt Hkh nksuks ,d
lkFk ifr iRuh ds :i esa jgdj oSokfgd thou
;kiu djus ds fy;s lger ugh gS vkSj vkilh
lgerh ls fookg foPNsn gsrq mDr okn i=
ekuuh; U;k;ky; esa nk;j fd;k gS A*

5. It appears that matter of the parties
was referred to mediation on 01.07.2022
but as report of Mediation and Conciliation
Center,
District
-
Ghaziabad,
dated
01.08.2022 the mediation has failed as both
the parties are adamant for divorce.

6. On these facts the parties have
moved the application 16 Ga 2 dated
01.08.2022 in the Court of Principal Judge,
Family Court No.1, Ghaziabad in divorce
petition No.1542 of 2022, under Section 13
B of the Act, 1965 for relaxing the period
of second motion of six months which has
been rejected by the impugned order dated
01.08.2022.

Submissions

7. Both the learned counsels for the
parties jointly submit that since all efforts
for mediation/reconciliation to reunite the
parties have failed and there is no
likelihood of success in that direction,
therefore, the parties have genuinely settled
their
differences
including
alimony.
Therefore, the breathing period of second
motion as provided in Section 13 B(2) of
the Act, 1955 will only prolong their agony.
They, therefore, jointly submit that the
court below has committed manifest error
of law not to allow the application for
relaxing the period.

Discussion & Findings

8. We have carefully considered the
submissions of learned counsels for the
parties and perused the record of the appeal
before us.

9. T he object of Section 13 B (2) of
the Hindu Marriage Act, 1955 and its
nature has been authoritatively explained
by Hon'ble Supreme Court in the case of
Amardeep Singh Vs. Harveen Kaur,
(2017) 8 SCC 746 (para 17 and 20), as
under :

"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
10 All. Smt. Shyamshri Vs. Sumant Kumar
1053
did not serve any purpose. The object of the
cooling off 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.

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."

10. The law laid down in the case of
Amardeep
Singh
(supra)
has
been
reiterated by Hon'ble Supreme Court in the
case of Amit Kumar Vs. Suman Beniwal,
(Civil Appeal No.7650 of 2021 decided on
11.12.2021)
and
the
factors
to
be
considered for relaxing the period of
second motion have been summarised in
paragraph 27, as under :

"27. For exercise of the discretion
to waive the statutory waiting period of six
months for moving the motion for divorce
under Section 13B (2) of the Hindu
Marriage Act, the Court would consider the
following amongst other factors:

(i) the length of time for which
the parties had been married;

(ii) how long the parties had
stayed together as husband and wife;

(iii) the length of time the parties
had been staying apart;

(iv) the length of time for which
the litigation had been pending;

(v) whether there were any other
proceedings between the parties;

(vi) whether there was any
possibility of reconciliation;

(vii) whether there were any
children born out of the wedlock;

(viii) whether the parties had
freely, of their own accord, without any
coercion or pressure, arrived at a genuine
settlement which took care of alimony, if
any, maintenance and custody of children,
etc."

11. Thus, we find no difficulty to hold
that the period mentioned in Section 13
B(2) of the Hindu Marriage Act, 1955 is
not mandatory but directory and it is open
to the Court to exercise its discretion in the
facts and circumstances of each case. The
factors for exercising the discretion have
been enumerated by Hon'ble Supreme
Court in the cases of Amardeep Singh
(supra) and Amit Kumar (supra) which
have been reproduced above.

12. For the reasons aforestated, the
impugned judgment and order dated
01.08.2022 can not be sustained and is
hereby set aside. Matter is remitted back to
the
Principal
Judge,
Family
Court,
Ghaziabad, to pass an order afresh in
accordance with law within one month
from the date of presentation of a certified
copy of this order. Liberty is granted to the
parties to file a supplementary affidavit
before the court below if they want to add
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
any circumstance in their application under
Section 13 B(2) of the Act, 1955.

13. The appeal is allowed.
----------
(2022) 10 ILRA 1054
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.10.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Special Appeal No. 420 of 2022

Prin./Chief
Medical
Superintendent
Saraswati Medical College, Unnao & Ors.
 ...Appellants
Versus
Mohammad Shakir Hussain & Ors.
 ...Respondents

Counsel for the Appellants:
Apoorva Tewari, Aditya Tewari

Counsel for the Respondents:
Kapil Gupta, C.S.C., Gyanendra Kumar
Srivastava, Kshitij Mishra, Savitra Vardhan
Singh

A. Education Law - Rustication/Ragging -
National Medical Commission (Prevention and
Prohibition of Ragging in Medical Colleges and
Institutions) Regulations 2021 - Regulations
23(1), 24 - National Medical Commission Act,
2019 - Section 57 - Regulations 2021 have been
framed and published only recently as on 18.11.2021
and are, thus, in their nascent stage. Implementation
of Regulations 2021...thus require some amount of
understanding as to how the Regulations are to apply
not only as a measure to check the menace of
ragging, but also as a measure to conduct the
inquiry/investigation as contemplated in Regulation
23 in a fair and appropriate manner. (Para 24)

B. Legal protection available to a student,
accused of ragging, when he is subjected
to an inquiry/investigation u/Regulation
23(2). The consequence of action against such
a
student
which
may
ensue
ultimately
u/Regulation 24, may be far-reaching even to
the extent that in a given case it may ruin his
career. Having regard to the seriousness of the
consequences in respect of future career of a
student
pursuing
a
vocational
course,
Regulation 23 of 2021 Regulations ought to be
followed meticulously and in its letter and spirit.

C. Principles as a precautionary measure
are laid down to aid the provisions of 2021
Regulations. The authorities of a Medical
College or any other Institution are to be
primarily, governed by the statutory regulations
namely Regulations 2021. They may, however,
seek some guidance from the observations.
(Para 26)

These guidelines are not in any manner, in
derogation of the 2021 regulations, rather only
to facilitate appropriate implementation of the
Regulations including Regulations 23 and 24 and
accordingly observations are to be understood
in this perspective and context alone. (Para 27)

In the present case, it is noticeable that
the
respondent
no.
1-petitioner
was
neither
provided
the
copies
of
the
statements of the complainant/witnesses
nor was he ever confronted with the copy
of the report said to have been submitted
by the Anti-Ragging Committee to the
Head of the Institution and accordingly
the inquiry as contemplated in Regulation
23 of 2021 Regulations 2021 against the
respondent no. 1-petitioner be conducted
afresh by furnishing him copy of the complaint,
statement of the complainants and witnesses
made before the Specific Committee on
21.7.2022 and inviting his reply to the same and
permitting him to make statement in his
defence. Thereafter the appellant-Institution
shall complete the inquiry in terms of Regulation
2021 as also keeping in view the observations
made hereinabove. (Para 28)

The order under appeal dated 13.9.2022 passed
by the learned Single Judge in Writ-C No. 5622
of 2022 is hereby set aside. The decision of the
Principal of the Institution, dated 25.7.2022