Ashwin vs Mamta
2022 Latest Caselaw 16659 MP

                                                                      1
                                   IN       THE      HIGH       COURT OF MADHYA                      PRADESH
                                                                  AT INDORE
                                                              BEFORE
                                              HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                       ON THE 15 th OF DECEMBER, 2022
                                                        MISC. PETITION No. 6076 of 2022

                                   BETWEEN:-
                                   ASHWIN S/O SHRI BUDIYA KOCHAK, AGED ABOUT 34
                                   YEARS, OCCUPATION: GOVT. JOB H.NO. 73, BRAHMAN
                                   GAON,    AYUDH    NAGAR,     ITARSI     DISTRICT
                                   HOSHANGABAD (MADHYA PRADESH)

                                                                                                   .....PETITIONER
                                   (BY MS. SMRITI RAZADAN - ADVOCATE)

                                   AND
                                   MAMTA D/O SH. RUMAL SINGH WASKALE, AGED
                                   ABOUT 29 YEARS, OCCUPATION: STUDENT H.NO. 84,
                                   ROOP KHED, DISTT. BADWANI AND CURRENT
                                   ADDRESS: 1234, KUNDAN NAGAR, CAT ROAD, INDORE
                                   (MADHYA PRADESH)

                                                                                                .....RESPONDENTS
                                        (bY SHRI NILESH SHARMA - ADVOCATE)

                                           This petition coming on for admission this day, the court passed the
                                   following:
                                                                       ORDER

This petition has been filed by the petitioner under Article 227 of the Constitution of India against order dated 18.11.2022 (Annexure P/3), passed in Hindu Marriage Case No.2210/2022 by the II Additional Principal Judge, Family Court, Indore (MP) whereby a joint application filed by the parties herein to waive the mandatory cooling off period of six months' time, as provided under Section 13-B (2) of the Hindu Marriage Act, 1955 (herein after referred to as the Act) has been rejected.

2. The petitioner and the respondent mutually have filed a petition under Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 12/15/2022 4:45:19 PM

section 13-B of Hindu Marriage Act, 1955 for divorce. It is stated that marriage of the petitioner and respondent was solemnized on 17.06.2021 in accordance with Hindu customs and rites (Arya Samaz) at Indore. Just after 15 days of the marriage, disputes started arising between the petitioner and the respondent and attempts were made by the family members of both the parties to settle the dispute between them but there has been no amicable outcome. The parties have started living separately since 2.07.2021 and they are living separately for more than one and half years. It is submitted that due to differences and dispute, there is no possibility of living together. Learned trial court has rejected the application relying on the decision rendered by the Supreme Court in the

matter of Amardeep Singh Vs. harveen Kaur, 2017 (8) SCC 746.

3. Counsel has also relied upon a subsequent decision rendered by the Supreme Court in the case of Amit Kumar v. Suman Beniwal reported in 2021 SCC OnLine SC 1270, wherein the Supreme Court has also interpreted the law laid down in the case of Amardeep Singh v. Harveen Kaur (supra); and in para 22, 27 and 3 MP No.4135/2022 28 of the said decision, the Supreme Court has held, as under: -

" 2 2 . The Family Court, as well as the High Court, have misconstrued the judgment of this Court in Amardeep Singh v. Harveen Kaur (supra) and proceeded on the basis that this Court has held that the conditions specified in paragraph 19 of the said judgment, quoted hereinabove, are mandatory and that the statutory waiting period of six months under Section 13B (2) can only be waived if all the aforesaid conditions are fulfilled, including, in particular, the condition of separation of at least one and half year before making the motion for decree of divorce.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 2 7 . For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13B (2) of the Hindu Marriage Act, the Court Signature Not Verified would consider the following amongst other factors: - Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 12/15/2022 4:45:19 PM

(i) the length of time for which the parties had been married;

(ii) how long the parties had stayed together as husband and wife;

(iii) the length of time the parties had been staying apart;

(iv) the length of time for which the litigation had been pending;

(v) whether there were any other proceedings between the parties;

(vi) whether there was any possibility of reconciliation; (Vii) whether there were any children born out of the wedlock;

(viii)whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc.

28. In this Case, as observed above, the parties are both well-educated and highly placed government officers. They have been married for about 15 months The marriage was a non-starter. Admittedly, the parties lived together only for three days, after which they have separated on account of irreconcilable differences. The parties have lived apart for the entire period of their marriage except three days. It is jointly stated by the parties that efforts at reconciliation have failed. The parties are unwilling to live together as husband and wife. Even after over 14 months of separation, the parties still want to go ahead with the divorce. No useful purpose would be served by making the parties wait, except to prolong their agony." (Emphasis supplied)

4. Thus, it is submitted by the learned counsel for the parties that in the pressing circumstances, in which the parties have found themselves, the application for waiving the cooling off period of six months has been filed and as has already been held by the Supreme Court that even the conditions as enumerated in the case of Amardeep Singh v. Harveen Kaur (supra) are not mandatory and the Court can also exercise its discretion taking into account the other circumstances as well. It is also submitted that a sum of Rs.5 lacs as permanent alimony has also been given by the petitioner to the respondent.

5. On due consideration of the submissions and perusal of the documents filed on record, including the decision rendered by the Supreme Court in the case of Amit Kumar v. Suman Beniwal (supra), this Court finds force with the Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 12/15/2022 4:45:19 PM

contentions raised by the learned counsel for the parties and considering the fact that the parties are already living separately since last more than one year and Six months), the respondent wife has already withdrawn all the cases lodged against the petitioner and has also received Rs. 5 lacs towards the permanent alimony, this Court is of the considered opinion that the application to waive the cooling off period of six months ought to have been allowed.

6. Accordingly, the impugned order dated 18.11.2022 (Annexure P/3) passed in Hindu Marriage Case No.2210/2022 by the II Additional Principal Judge, Family Court, Indore (MP) is hereby set aside and the joint application dated 18.11.2022 (Annexure P/3) filed by the parties to waive the cooling off period of six months is hereby allowed and the learned Judge of the Family Court is requested to proceed further, as expeditiously as possible.

7. The parties are directed to remain present before the Family Court, Indore on 20.12.2022.

8. Accordingly, the petition stands disposed of

(VIJAY KUMAR SHUKLA) JUDGE

MK

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 12/15/2022 4:45:19 PM