Allahabad High Court

Nitin Rastogi vs Neelima Kushwaha @ Rinki Rastogi on 17 November, 2025





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:73892
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
MATTERS UNDER ARTICLE 227 No. - 6707 of 2025   
 
   Nitin Rastogi    
 
  .....Petitioner(s)   
 
 Versus  
 
   Neelima Kushwaha @ Rinki Rastogi    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Petitioner(s)   
 
:   
 
Himanshu Trigunait   
 
  
 
Counsel for Respondent(s)   
 
:   
 
  
 
   
 
     
 
 Court No. - 19
 
   
 
 HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

1. Vakalatnama filed by Shri Pawan Bhaskar, Advocate on behalf of the respondent is taken on record.

2. Heard learned counsel for the petitioner, the learned counsel appearing for the respondent-wife and perused the record.

3. The instant petition under Article 227 of the Constitution of India has been filed with the following main prayer:-

"(I) Issue a Order or Direction to the Learned Additional Principal Judge Court no. 06, Family Court, Lucknow to waive the statutory cooling-off period under section 13 B(2) of the Hindu Marriage Act, 1955 in the Divorce petition No. 2313 of 2025; title as Neelima Kushwaha @ Rinki Rastogi Vs. Nitin Rastogi, and decide expeditiously, as this Hon'ble Court may deemed fit which is pending since 2025 (contained in Annexure No.1 to this petition), in the interest of justice."

4. Learned counsel for the petitioner submits that the petitioner and the respondent have solemnized their marriage in Arya Samaj Mandir, Mahaveerganj, Aliganj, Lucknow according to Hindu rights and rituals, driven by love affairs on 22.03.2008, the marriage was duly registered on 06.02.2009 before the Marriage Registrar at District Hardoi. The couple was blessed with a child named Veer Rastogi in the year 2010, who is under the custody of the mother/ opposite party. Now, the parties have decided to live separately and get a divorce under Section 13-B of the Hindu Marriage Act, 1955, by mutual consent. The parties have made every effort to reconcile their differences and to continue their marital relationship but it could not succeed. The parties have been living separately since 20.03.2023 and more than 18 months have already expired prior to the presentation of the first motion on 03.09.2025 for divorce under Section 13 B, therefore, there was no legal impediment before the court below to waive the cooling-off period of six months. The parties have planned to settle their lives according to their choice and to discontinue their marital relationship and for that, an application for waiving the cooling-off period was presented before the court below but the same was rejected, taking a hyper-technical approach and misinterpreting the legal position settled by the Hon'ble Apex Court to exercise discretion to waive the cooling-off period.

5. In compliance of the order dated 03.09.2025 passed by learned Additional Principal Judge 06, Family Court, Lucknow, the parties appeared before the Mediation Center on the first motion on 05.09.2025, but on second time, mediation failed and cohabitation between the parties could not be resumed, as their marriage has broken down irretrievably and there is no possible path of reconciliation and exemption. Even after the failure of mediation, the parties had filed a second application for waiving the cooling-off period but the same was not entertained.

6. He next submits that the interests of the parties are adversely affected due to the rejection of the application for waiving the cooling-off period by the learned Family Court.

7. He next submits that the learned court below placed reliance on the judgment of the Hon'ble Supreme Court in the case of Amardeep Singh versus Harveen Kaur, 2017 AIR (Supreme Court) 4417, wherein it is held that the period mentioned in Section 13B is not mandatory but discretionary, and that a Court may exercise this discretion in the facts and circumstances of each case, where there is no possibility of the parties to resume cohabitation and there are chances of alternative rehabilitation. In the case of Shilpa Sailesh versus Varun Sreenivasan, (2023) 14 SCC 231, Apex Court held that a court can waive the cooling-off periods when it is satisfied that the marriage has irretrievably broken down and that forcing couples to wait would serve no constructive purpose.

8. Learned counsel placed reliance on a judgment of the Hon'ble Supreme Court in the case of Amit Kumar versus Suman Beniwal, (2021) SCC Online SC 1270, wherein it is held as under:-

"17. Legislature has, in its wisdom, enacted section 13B (2) of the Hindu Marriage Act to provide for a cooling period of six months from the date of filing of the divorce petition under Section 13B (1), in case the parties should change their mind and resolve their differences. After six months if the parties still wish to go ahead with the divorce, and make a motion, the Court has to grant a decree of divorce declaring the marriage dissolved with effect from the date of the decree, after making such enquiries as it considers fit.

18. The object of Section 13B(2) read with Section 14 is to save the institution of marriage, by preventing hasty dissolution of marriage. It is often said that "time is the best healer. With passage of time, tempers cool down and anger dissipates. The waiting period gives the spouses time to forgive and forget. If the spouses have children, they may, after some time, think of the consequences of divorce on their children, and reconsider their decision to separate. Even otherwise, the cooling period gives the couple time to ponder and reflect and take a considered decision as to whether they should really put an end to the marriage for all time to come.

19. Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filing of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage. Thus, if the marriage has broken down irretrievably, the spouses have been living apart for a long time, but not been able to reconcile their differences and have mutually decided to part, it is better to end the marriage, to enable both the spouses to move on with the life.

20. In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, relied upon by the Family Court and the High Court, this Court held:

"19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B (2), it can do so after considering the following:

(i) The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

(ii) All efforts for mediation/conciliation including efforts in terms of Order 32A Rule 3 CPC/Section 23(2) of the Act/section 9 of the Family Courts Art to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

(iii) The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

(iv) The waiting period will only prolong their agony.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned.

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."

21. The factors mentioned in Amardeep Singh v. Harveen Kaur (supra), in Paragraph 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 13B (2) of the Marriage Act"

9. Learned counsel for the respondent has not disputed but rather concurred with the submissions made by learned counsel for the petitioner.

10. Consequently, the application 8C is allowed and the cooling-off period of six months from the date of filing of the writ petition is hereby waived. The petition is allowed accordingly. The learned Family Court is directed to consider the divorce petition by mutual consent without waiting for completion of the waiving off period, in accordance with law.

11. The petition is allowed accordingly.

12. Parties are directed to appear before the court below within 10 days and file a certified copy of this order; the court will then proceed in the case as per the directions given in this order.