Maya W/O Durgesh Singh vs Durgesh Singh
2023 Latest Caselaw 6274 MP

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 IN THE         HIGH COURT               OF MADHYA PRADESH

                             AT I N D O R E
                                  BEFORE
              HON'BLE SHRI JUSTICE PRANAY VERMA

                      ON THE 19th OF APRIL, 2023



                    MISC. PETITION No. 2214 of 2023

BETWEEN:-
MAYA W/O DURGESH SINGH D/O LATE PREM SINGH,
AGED ABOUT 34 YEARS, OCCUPATION: PRIVATE JOB
R/o.40/2 PANDIT DINDAYAL UPHADHYA NAGAR
SUKHLIYA INDORE (MADHYA PRADESH)
                                                              .....PETITIONER
(BY SHRI DURGESH SHARMA, ADOVCATE)
AND
DURGESH SINGH S/O RAMSHANKAR SINGH, AGED
ABOUT 33 YEARS, OCCUPATION: AGRICULTURE
WARD NO.10 NIKASPUR, SAMSTIPUR (BIHAR)
                                                           .....RESPONDENTS
(BY SHRI SUBODH CHOUDHARY, ADVOCATE)
This petition coming on for admission this day, the court passed the

following:

                                  ORDER

Heard finally with the consent of the learned counsel for the parties.

2. This petition has been filed by the petitioner under Article 227 of the Constitution of India against the order dated 10.4.2023 (Annexure P/4), passed in HMA Case No. 371/2023 by the 2nd Principal Judge, Family Court, Indore whereby a joint application filed by the parties herein to waive the mandatory cooling period of 6 months time as provided under Section 13-B(2) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') has been

rejected.

3. Admittedly, the petitioner and the respondent's marriage was solemnized on 16.5.2010 and they are living separately since 10.10.2019 whereas an application under Section 13-B of the Act for divorce by mutual consent has been filed on 14.2.2023. Thereafter a joint application to waive off the cooling period was filed on 10.4.2023 wherein it was mentioned that the parties have already settled their disputes and have agreed to withdraw all the cases filed by them against each other hence are filing the application to waive off the cooling period of six months. The aforesaid application came to be dismissed by the 2nd Principal Judge, Family Court, Indore on 10.4.2023.

4. Learned counsel for the parties have relied upon decision rendered by the Supreme Court in the case of Amit Kumar vs. Suman Beniwal reported in 2021 SCC Online SC 1270, wherein 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 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)

5. Thus it is submitted by the learned counsel for the parties that in the present 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 even the conditions as enumerated in the case of Amardeep Singh vs. Hharveen Kaur reported as 2017 (8) SCC 746 are not mandatory and court can exercise its discretion taking into account other circumstances as well.

6. On due consideration of the submissions and perusal of the documents filed on record including the decision rendered by the Supreme Court in Amit Kumar (supra) this court finds force with the contentions raised by the parties.

Considering the fact that they are living separately since 30.4.2019 and have undertaken to withdraw all the cases pending between them, this court is of the considered opinion that the application to waive the cooling off period of six months ought to have been allowed. Accordingly, the impugned order dated 10.4.2023 (Annexure P/4) is set aside and the joint application filed by the parties to waive the cooling off period of six months is hereby allowed and the 2nd Addl. Principal Judge Family court, Indore is requested to proceed further as expeditiously as possible.

7. The parties are directed to remain present before the 2nd Addl. Principal Judge Family court, Indore on 25.4.2023.

8. The petition is accordingly disposed off.

(PRANAY VERMA) JUDGE SS/-

Digitally signed by SHAILESH MAHADEV SUKHDEVE Date: 2023.04.21 10:56:05 +05'30'