Six month cooling period waived off by HC

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    SPECIAL CIVIL APPLICATION NO. 20889 of 2015

         ==========================================================
                    NILAMBEN BHARATKUMAR PATEL....Petitioner(s)
                                    Versus
                   BHARATKUMAR DAHYABHAI PATEL....Respondent(s)
         ==========================================================
         Appearance:
         MR. PR BRAHMBHATT, ADVOCATE for the Petitioner(s) No. 1
         MR. MEET M. THAKKER, ADVOCATE for the Respondent No.1
         ==========================================================

                 CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI

                                    Date : 22/12/2015
                                     ORAL ORDER

1. Rule. Learned advocate Mr. Meet M. Thakker waives service of Rule on behalf of the respondent No.1.

2. Learned advocate Mr. Meet M. Thakker undertakes to file his appearance.

3. Heard learned advocate for the parties.

4. The petitioner claimed to be aggrieved refusal by trial Court to waive 6 months period in Hindu Marriage Petition No. 8 of 2015 for divorce by mutual consent.

5. Marriage of the petitioner with the respondent was solemnized on 30.10.2002. Thereafter, few years the parties resided together. Since the year 2008 they are residing separately. They have also obtained customary divorce. The said deed was executed on 18.08.2008. Thereafter, the parties have filed divorce HC-NIC Page 1 of 3 Created On Wed Dec 23 02:44:52 IST 2015 C/SCA/20889/2015 ORDER petition by mutual consent on 24.08.2015, then the application of waive 6 months period was filed on 07.10.2015. Attention was also drawn of this Court to the order passed by the trial Court.

6. In very short order the trial Court has rejected the application only on the ground that Court has no power to waive the 6 months period. Though the application to waive the 6 months period was in details, it appears that the trial Court has not considered the said application. Rejection of the application appears to be without considering the facts and circumstances of the case.

7. Relevant circumstances namely the fact that the parties are residing separately more than 7 years, execution of divorce deed to obtain customary divorce, reason of urgency expressed on behalf of one of the spouses namely the wife, are not considered by the trial Court. Besides these circumstances the trial Court could have verified their willingness and urgency and could have satisfied itself. Herein attention of the trial Court was drawn to the judgment of Jigneshkumar Dilipbhai Patel v. Principal Senior Civil Judge, reported in (2014) GLR Page 566. Referring this judgment the trial Court rejected the application. Applicability of the Jigneshkumar Dilipbhai Patel (supra) case or not is not considered by the trial Court.

8. At the time of hearing learned advocate for the petitioner has also drawn attention to order passed by HC-NIC Page 2 of 3 Created On Wed Dec 23 02:44:52 IST 2015 C/SCA/20889/2015 ORDER this Court in Special Civil Application No. 3615 of 2013.

9. As stated by learned advocate for the petitioner reason for urgency on the ground that one of the spouses namely wife intends to remarry. The would be husband resides at abroad and passport procedure are to be completed preferably by the end of January, 2016.

10. In view of the above discussion, the present petition is allowed. 6 months period for seeking divorce is hereby waived. The order dated 11.12.2015 passed by the trial Court is hereby set aside. Rule is made absolute.

Direct service is permitted.

(R.D.KOTHARI, J.) BD Songara HC-NIC Page 3 of 3 Created On Wed Dec 23 02:44:52 IST 2015

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