Madhya Pradesh High Court
Vaibhav Pancholi vs Smt. Priya on 19 September, 2022
Author: Subodh Abhyankar
MP No.4135/2022
1
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 19TH OF SEPTEMBER, 2022
Miscellaneous Petition No.4135/2022
Between: -
Vaibhav Pancholi S/o Shri Vinod Kumar Pancholi,
Age- 31 years, Occupation: Service,
R/o: 18/1, Deep Nagar, Mandidweep, Ward No.1,
Mandidweep, District Raisen (MP)
.....PETITIONER
(By Mr. Nilesh Sharma, Advocate)
AND
Smt. Priya W/o Vaibhav Pancholi (D/o Shri Ashok Vyas),
Age: 31 years, Occupation: Assistant Manager Bank,
R/o: 79, Dwarkapuri, Near Sectum School, Indore District Indore (MP)
.....RESPONDENT
(By Ms. Smriti Razadan, Advocate)
...............................................................................................................................
This petition coming on for orders this day, the court passed
the following:
ORDER
Heard finally, with the consent of the learned counsel for the
parties.
This petition has been filed by the petitioner under Article
227 of the Constitution of India against order dated 05.08.2022
(Annexure P/4), passed in Hindu Marriage Case No.1406/2022 by
the learned Principal Judge, Family Court, Indore (MP) whereby a
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 21-09-2022
18:07:14
MP No.4135/2022
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. Admittedly, the petitioner and the respondent's marriage was
solemnized on 10.02.2020, and they are living separately from
13.06.2021 whereas an application under Section 13-B of the Act
for divorce by "mutual consent" has been filed on 27.06.2022
(Annexure P/1). Thereafter, a joint application to waive off the
cooling period of six months period was filed on 20.07.2022
(Annexure P/3), wherein it was mentioned that the petitioner
Vaibhav Pancholi is a Software Engineer and he is due to leave
India on a short notice and since both the parties have already
settled their disputes and the respondent has also withdrawn all the
cases levelled by her against her husband (petitioner herein), an
application to waiving off the cooling period of six months was
filed. The aforesaid application came to be dismissed by the Family
Court vide its order dated 06.08.2022, relying upon the decision
rendered by the Supreme Court in the case of Amardeep Singh v.
Harveen Kaur reported as 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
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Signed by: RAMESH
CHANDRA PITHWE
Signing time: 21-09-2022
18:07:14
MP No.4135/2022
28 of the said decision, the Supreme Court has held, 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.
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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;
(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
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Signed by: RAMESH
CHANDRA PITHWE
Signing time: 21-09-2022
18:07:14
MP No.4135/2022
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.11
lacs as permanent alimony has also been given by the petitioner to
the respondent by way of a bank draft in her name.
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 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 two months (14 months), the respondent wife has already
withdrawn all the cases lodged against the petitioner and has also
received a bank draft of Rs.11 lacs towards the permanent alimony,
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Signed by: RAMESH
CHANDRA PITHWE
Signing time: 21-09-2022
18:07:14
MP No.4135/2022
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 05.08.2022
(Annexure P/4) passed in Hindu Marriage Case No.1406/2022 by
the learned Principal Judge, Family Court, Indore (MP) is hereby
set aside and the joint application dated 20.07.2022 (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 27.09.2022.
8. Accordingly, Miscellaneous Petition No.4135/2022 stands
disposed of.
(Subodh Abhyankar)
Judge
Pithawe RC
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 21-09-2022
18:07:14
