Mrs. Shefali vs Tejaswa
2022 Latest Caselaw 8536 MP

                                                                       MP No.2623/2022
                                                      1

                 High Court of Madhya Pradesh, Jabalpur
                             Bench at Indore

                        BEFORE
        HON'BLE SHRI JUSTICE SUBODH ABHYANKAR

                           ON THE 28TH OF JUNE, 2022

                      Miscellaneous Petition No.2623/2022
Between: -
Mrs. Shefali W/o Tejaswa Jain,
Age- 30 years, Occupation- Job,
Address: Flat No.101/B-1, Mahavir Empier Residency,
Kanadiya Road, Brajeshwari Extension,
Near Bengali Square, Indore District Indore (MP)
                                                            .....PETITIONER
(By Shri Amar Singh Rathore, Advocate
along with Shri Arpit Singh, Advocate)

AND
Tejaswa S/o Abhay Jain,
Age- 30 years, Occupation: Job,
Address: B-14, Aadi Homes, Wright Town,
Thana Lordgranj, Jabalpur, District Jabalpur (MP)

(By Shri Kunjan Mittal, Advocate)
                                   .....RESPONDENT
...............................................................................................................................

         This PETITION coming on for orders this day, the court
passed the following:
                                             ORDER

Heard on the question of admission.

This petition has been filed by the petitioner under Article 227 of the Constitution of India against order dated 16.06.2022 (Annexure P/1) passed in Hindu Marriage Case No.847/2022 by the MP No.2623/2022

learned 2nd Additional Principal Judge, Family Court, Indore (MP) whereby an application under Section 21-B of the Hindu Marriage Act, 1955 (herein after referred to as the Act) filed by the parties to waive the mandatory six months' time, as provided under Section 13-B (2) of the Act has been rejected on the ground that the parties have not completed eighteen (18) months period, as directed by the Supreme Court in the case of Amardeep Singh v. Harveen Kaur reported as 2017 (8) SCC 746.

2. The parties before this Court have relied upon a 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 observed that para 19 of the decision rendered in the case of Amit Kumar (supra) has been misconstrued by the Courts below, that this statutory waiting period of six months under Section 13-B (2) of the Act can only be waived, if all the aforesaid conditions are fulfilled including, in particular, the condition of separation of at least one and half years before making the motion for decree of divorce; and thereafter, in paras 27 and 29 of the said decision while observing that the parties are residing separately since last fifteen months, the Supreme Court has allowed their application.

3. Counsel for the parties submit that in the present case, the marriage between the parties took place on 09.12.2020 and from 20.12.2020 i.e. after a period of eleven days only, they started residing separately till filing of the application under Section 13-B MP No.2623/2022

of the Act on 08.04.2022 and as such even eighteen months of their marriage have completed on 18.06.2022. Thus, it is submitted that there is no difficulty in allowing the present application, in the light of the decision of the Supreme Court in the case of Amit Kumar (supra).

4. On perusal of the documents placed on record, this Court finds force with the contentions raised by the learned counsel for the parties, taking note of decision of the Supreme Court in the case of Amit Kumar (supra). Paras 22, 27 and 28 of the said decision are relevant, which read as under: -

"22. 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.

27. 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 would consider the following amongst other factors: -

(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;

MP No.2623/2022

(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."

5. In view of the same, since in the present case, the parties are already residing separately for around eighteen months due to irreconcilable differences no purpose would be served to force them to further wait for six more months. In such circumstances, their mandatory period of six months is hereby waived in entertaining the application under Section 13-B (2) of the Act. Consequently, order dated 16.06.2022 (Annexure P/1) passed in Hindu Marriage Case No.847/2022 by the learned 2nd Additional Principal Judge, Family Court, Indore (MP) is hereby quashed. Accordingly, the learned Judge of the Family Court is directed to decide the application as expeditiously as possible within a period of one week.

6. Let the parties appear before the Family Court, Indore on 01.07.2022.

MP No.2623/2022

7. Accordingly, Miscellaneous Petition No.2623/2022 stands disposed of.

All the other pending interlocutory applications, if any, shall stand disposed of.

(Subodh Abhyankar) Judge Pithawe RC

RAMESH CHANDRA PITHWE 2022.06.30 17:41:17 +05'30'