inkinccorporation@gmail.com Allahabad High Court
Rohitash Singh vs Ruchi on 18 February, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:36293-DB
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
FIRST APPEAL No. - 989 of 2025
Rohitash Singh
.....Appellant(s)
Versus
Ruchi
.....Respondent(s)
Counsel for Appellant(s)
:
Sandeep Kumar Srivastava
Counsel for Respondent(s)
:
Brijesh Kumar Pandey
Court No. - 29
HON'BLE ARINDAM SINHA, J.
HON’BLE SATYA VEER SINGH, J.
(Per 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).
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 sub-section (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 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 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 13-B 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 sub-section (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 sub-section (2) of section 19 of Family Courts Act, 1984 because though impugned judgment was on a 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.
(Arindam Sinha,J.)
(Satya Veer Singh,J.)
February 18, 2026
sailesh
