Smt. Avni Kuraiya vs Vaibhav Jain
2023 Latest Caselaw 2597 MP

                                                              1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                       BEFORE
                                       HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                              ON THE 13 th OF FEBRUARY, 2023
                                               MISC. PETITION No. 767 of 2023

                          BETWEEN:-
                          SMT. AVNI KURAIYA W/O VAIBHAV JAIN, AGED ABOUT
                          29 YEARS, OCCUPATION: D/O RAJENEESH KURAIYA
                          OCCUPATION- STUDENT R/O- RIGHT TWON, JABALPUR
                          (MADHYA PRADESH)

                                                                                           .....PETITIONER
                          (BY SHRI NIKHIL TIWARI - ADVOCATE )

                          AND
                          VAIBHAV JAIN S/O SHRI RAJIV JAIN, AGED ABOUT 30
                          YEARS, R/O IN FRONT OF GOVT. HOSPITAL GOTEGAO
                          SHRIDHAM     DISTRICT NARSINGHPUR (MADHYA
                          PRADESH)

                                                                                        .....RESPONDENTS
                          (BY SHRI S.K. GUPTA - ADVOCATE)

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

This is a petition assailing the order dated 27-01-2023 by which the Family Court has declined to entertain the request made by the applicant and non-applicant jointly, to waive of cooling period, in terms of the law laid down by the Apex Court in the case of Amardeep Singh vs. Harveen Kaur, (2017) 8 SCC 746.

2. It is contended by the learned counsel for applicant that a petition under Section 13-B(2) of the Hindu Marriage Act, 1955 was filed by the parties before the Court below, and a request was made to waive off the cooling Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 2/14/2023 12:51:45 PM

period, inasmuch as there was no possibility of settlement, and the parties have consciously taken a decision to part ways and lead their lives independently. Accordingly, the said application ought to have been allowed.

3. Contention advanced by the learned counsel for the applicant has not been opposed by the learned counsel for the non-applicant

4. The apex Court in the case of Amardeep Singh (supra) in para 19 ruled thus :

"19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do

so after considering the following:

(i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself;

(ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

(iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned."

Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 2/14/2023 12:51:45 PM

5. Therefore, in view of the aforesaid, if there are no chances of any settlement between the parties, it would be an exercise in futility, to unnecessary prolong the proceedings, and while taking this aspect into consideration, the apex Court has issued directions as regards waiver of cooling period.

6. Therefore, if the impugned order is examined in view of the law laid down by the Apex Court in Amardeep Singh (supra), the same would reveal that there is complete failure on the part of the Court below, to appreciate the ratio laid down by the apex Court in Amardeep Singh (supra).

7. Again, the apex Court in the case of Amit Kumar vs. Suman Beniwal, 2021 SCC OnLine SC 1270 has repeated the same view and in paras 22, 27 and 28 of the judgment 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.

***

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 :-

Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 2/14/2023 12:51:45 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."

Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 2/14/2023 12:51:45 PM

8. Thus, the parties submit that all conditions as directed in Amardeep Singh (supra) are fulfilled and there is no possibility of any reconciliation and, therefore, cooling period be waived of.

9. Accordingly, the order impugned dated 27-01-2023 is set aside and cooling period is waived off. The parties are directed to appear before the Family Court on 22-02-2023. Family Court is requested to proceed further in accordance with law.

10. With the aforesaid observation and direction, the present petition stands disposed of.

(MANINDER S. BHATTI) JUDGE ac

Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 2/14/2023 12:51:45 PM