Vaibhav vs Smt. Nidhi Nashikkar Nirkhe
2021 Latest Caselaw 5337 MP

Citation : 2021 Latest Caselaw 5337 MP
Judgement Date : 13 September, 2021

Madhya Pradesh High Court

Vaibhav vs Smt. Nidhi Nashikkar Nirkhe on 13 September, 2021

Author: Vivek Rusia

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         THE HIGH COURT OF MADHYA PRADESH
                     BENCH AT INDORE
         (S.B.: HON'BLE Mr. JUSTICE VIVEK RUSIA)
                              M.P. No.2854/2021
Vaibhav S/o Shri Suresh Nirkhe, aged about 32 years, Occupation Private Job,
R/o House No.55, Badwani Road, Gayatri Colony, Kukshi, District Dhar, M.P.
                                                         ---Petitioner.
                                  Versus
Nidhi Nashikkar Nirkhe W/o Shri Vaibhav Nirkhe, aged about 29 years,
Occupation- Housewife, R/o 81-A Alok Nagar, Kanadia Road, Indore M.P.
                                                         --- Respondent

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       Ms.Deepika Rathi, learned counsel for the Petitioner.
       Shri Anopam Chouhan, learned counsel for the Respondent .
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                                    ORDER

Date: 13.09.2021:

Petitioner and respondents are husband and wife by virtue of their marriage solemnized on 25.11.2016 in Indore under Hindu customs and rituals. According to them, they are living separately since May, 2020 and there is no possibility reunion. Hence, on 01.07.2020, they jointly filed petition under Section 13-B of the Hindu Marriage Act seeking dissolution of marriage by mutual consent .

On 01.07.2021, both the parties were relegated to the mediation but failed. On the basis of affidavits and documents filed alongwith petition, vide order dated 11.08.2021, the learned Family Court has fixed the date after six months for passing the decree of divorce from the first motion i.e. 01.07.2020.

The learned Family Court has rejected the application filed for waiving of the six months cooling period. Hence, petitioner and respondent before this Court by way of this petition.

Learned counsel for the parties has placed reliance over the judgment passed by this Court in case of Smt. Usha Mehta Vs. Dilip Mehta ( M.P. No.679/2021 decided on 19.02.2021),

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judgment passed by Madras High Court in case of Raji @ Jasmine Rani Vs.Nil ( C.R.P. (PD) (MD) No.2655/2018 decided on 29.11.2018 ), and judgment passed by Rajasthan High Court in case of Himanshu Gupta S/o Shri Ramsharan Vs. Smt.Akshita Gupta ( C.M.A No.5517/2019 decided on 10.12.2019) in which similar circumstances, the High Court waived off the cooling period.

Learned counsel for the parties further submits that they are living separately since May, 2020 and there is no possibility of their reunion. The waiting period will only prolong their agony. They want to start their life afresh after separation, hence, Family Court may be directed to pass the decree of divorce by mutual consent.

I have learned counsel for the parties and perused the record. The Apex Court in the case of Amardeep Singh Vs. Harveen Kaur (2017) 8 SCC 746 has held as under:

"18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter issatisfied 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 XXXIIA Rule 3 CPC/ Section 23(2) of the Act/Section 9 of the Family Courts Act 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."

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The husband has agreed to give Rs. 5,00,000/- to the wife as permanent alimony out of which two cheques of Rs. 2,50,000/- has been annexed with the application. It is clear from the aforesaid, there is no possibility of that they live together as husband and delay will suffer mental and torture to them. Their planning for future life after separation would be delayed.