Allahabad High Court
Dr. Bhanu Pratap Singh vs Learned Principal Judge Family ... on 12 May, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:32913
Court No. - 21
Case :- MATTERS UNDER ARTICLE 227 No. - 2420 of 2023
Petitioner :- Dr. Bhanu Pratap Singh
Respondent :- Learned Principal Judge Family Court Dist. Lucknow And Another
Counsel for Petitioner :- Rohit Jaiswal,Adarsh Pratap Singh,Mohit Gupta
Hon'ble Manish Mathur,J.
1. Heard learned counsel for petitioner and Mr. Sudhanshu Chauhan, learned counsel for opposite party no.2, whose power is taken on record.
2. Petition under Article 227 of the Constitution of India has been filed challenging the order dated 04.04.2023 passed in Regular Suit No.1127 of 2023 instituted under Section 13-B of Hindu Marriage Act.
3. Learned counsel for petitioner submits that initially the petitioner and opposite party no.2 had entered into marriage on 12.11.2017 but due to differences are living separately since 23.03.2019. It is submitted that there is no child born out of the wedlock and therefore the opposite party no.2 had filed Regular Suit No.2243 of 2020 under Section 13(1) of the Hindu Marriage Act on 21.09.2020. It is submitted that the case was referred to mediation which failed and report as such was submitted on 01.10.2021. It is submitted that subsequently, the parties wish to settle their dispute amicably and therefore the present suit was filed under Section 13B of the Act alongwith an application for waiving off the cooling period of six months, which has been rejected by means of impugned order.
4. Learned counsel for petitioner submits that the impugned order has completely ignored the dictum of Hon'ble the Supreme Court rendered in the Case of Amar Deep Singh versus Harveen Kaur reported in AIR (2017) SC 4417 in which four conditions have been indicated in paragraph 18, which have not been considered while passing impugned order.
5. Learned counsel appearing on behalf of opposite party no.2 does not dispute the aforesaid submissions of learned counsel for petitioner.
6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material available on record, it is evident that Hon'ble the Supreme Court in the case of Amar Deep Singh(supra) has indicated four conditions for waiving off the statutory period in terms of Section 13-B of the Act.
7. A perusal of impugned order makes it evident that the aforesaid conditions have not been considered at all by Court while passing the impugned order, which has been passed only on the ground that mediation has not been resorted to between the parties and as such there is no occasion to waive off the cooling period. The aforesaid aspect was required to be considered by the Court in terms of directions issued by Hon'ble the Supreme Court in the case of Amar Deep Singh(supra). As such, impugned order 04.04.2023 passed in Regular Suit No.1127 of 2023 instituted under Section 13-B of Hindu Marriage Act clearly being not in accordance with judgment rendered by Hon'ble the Supreme Court is hereby set aside. The Opposite party no.1 i.e. Principal Judge, Family Court, Lucknow is directed to re-consider the application for waiving off cooling off period in terms of judgment rendered by Hon'ble the Supreme Court in the case of Amar Deep Singh(supra).
8. Consequently, the petition succeeds and is allowed. Parties to bear their own costs.
Order Date :- 12.5.2023
Subodh/-
