Vinay Shrivastava vs Smt. Shefali
2023 Latest Caselaw 6568 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                       BEFORE
                                           HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                 ON THE 24 th OF APRIL, 2023
                                              MISC. PETITION No. 2321 of 2023

                           BETWEEN:-
                           VINAY SHRIVASTAVA S/O      SHRI   OMPRAKASH
                           SHRIVASTAVA, AGED ABOUT 35 YEARS, OCCUPATION:
                           SERVICE, R/O: HOUSE NO. A-294, SAMARTH PARK,
                           UMRIYA TEHSIL MHOW, DISTRICT INDORE (MADHYA
                           PRADESH)

                                                                                          .....PETITIONER
                           (SHRI SHUBHAM VYAS, LEARNED COUNSEL FOR THE PETITIONER .)

                           AND
                           SMT. SHEFALI W/O SHRI VINAY SHRIVASTAVA, AGED
                           ABOUT 32 YEARS, OCCUPATION: STUDY, R/O: 419/86,
                           NEAR SENEH NAGAR PARK, GOPALGANJ, SAGAR
                           (MADHYA PRADESH)

                                                                                         .....RESPONDENT
                           (SHRI ABHILESH VERMA, LEARNED COUNSEL FOR THE RESPONDENT.)

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

1. The present petition is filed under article 227 of the Constitution of India challenging the order dated 12.04.2023 (Annexure P/1) passed by the Fifth District Judge, Dr. Ambedkar Nagar, District Indore (MP) in HMA No.26/2023, whereby, the application filed by the petitioner to waive off the cooling period for grant of divorce by mutual consent has been rejected.

2. The petitioner has filed a case under Section 13-B of the Hindu Marriage Act for grant of divorce by mutual consent. The marriage of the Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 25-04-2023 18:47:30

petitioner was solemnized by Hindu rites on 08.03.2018. They started living separately from 10.10.2019. After separation, the respondent filed a case under section 125 of the Cr.P.C for grant of maintenance against the petitioner, which was disposed of by Additional Principal Judge, Family Court, Sagar, (MP) in MJC-R/50/2021; and the mediation proceedings for reconciliation before the parties also failed.

3. Upon filling of the case under Section 13-B of the Hindu Marriage Act, 1955 for divorce by mutual consent, both the petitioner and the respondent withdrew the aforesaid case (s) / already disposed of by the family Court on the ground that all the disputes are settled between the parties and they have applied

for waiving off the cooling period.

4. Learned counsel for the respondent does not dispute that the aforesaid facts and submits that both the petitioner and the respondent are living separately from 10.10.2019 and there is no possibility of reconciliation between the parties.

5. Learned counsel for the petitioner relied on the judgment passed by the Apex Court in the case of Amardeep Singh Vs. Harveen Kuar reported in (2017) 8 SCC 746 and also relied on the judgment of the Apex Court in the case of Amit Kumar Vs. Suman Beniwal reported in 2021 SCC Online 1270 wherein it is held that as per the judgment of Amardeep Singh (supra) the statutory waiting period of six months could be waive off and the said period is not mandatory but a directory.

6. Considering the aforesaid submissions and taking into consideration the judgment of the Apex Court, the cooling period is waived off. The petition is allowed.

7. The impugned order rejecting the application for waiving off the Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 25-04-2023 18:47:30

cooling period is set aside.

8. The parties shall appear before the Family Court on the next date and the Family Court shall make all endeavors to conclude the proceedings expeditiously.

9. With the aforesaid, the present petition stands allowed and disposed off.

(VIVEK RUSIA) JUDGE rcp

Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 25-04-2023 18:47:30