Smt Nidhi vs Sooraj
2023 Latest Caselaw 442 MP

                                                             1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE PRANAY VERMA
                                               ON THE 9 th OF JANUARY, 2023
                                               MISC. PETITION No. 20 of 2023

                          BETWEEN:-
                          SMT NIDHI W/O SOORAJ MEHTA, AGED ABOUT 21
                          YEARS, OCCUPATION: HOUSEHOLD R/O 116 ADARSH
                          INDIRA NAGAR INDORE (MADHYA PRADESH)

                                                                                          .....PETITIONER
                          (BY SHRI YASH PAL RATHORE - ADVOCATE)

                          AND
                          SOORAJ S/O KANHAIYALAL MEHTA, AGED ABOUT 23
                          YEARS, OCCUPATION: SERVICE R/O 24 SHRINATH
                          COLONY TILAK NAGAR INDORE (MADHYA PRADESH)

                                                                                         .....RESPONDENT
                          (BY SHRI PANKAJ SHARMA- 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 14.12.2022 (Annexure P/1), passed in HMA. Case No.2276/2022 by the First Additional Principal Judge, Family Court, Indore whereby a joint application filed by the parties herein to waive the mandatory cooling period of six months time as provided under Section 13(B) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") has been rejected.

Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 10-Jan-23 12:27:18 PM

3. Admittedly, the petitioner and the respondent's marriage was solemnized on 03.06.2021 and they are living separately since 04.06.2021 whereas an application under Section 13(B) of the Act for divorce by mutual consent has been filed on 18.10.2022. Thereafter a joint application to waive off the cooling period was filed 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 First Additional Principal Judge, Family Court, Indore vide order dated 14.12.2022.

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 Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 10-Jan-23 12:27:18 PM

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, theparties 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. 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 25.8.2022 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 First Additional Principal Judge, Family Court, Indore is requested to proceed further as expeditiously as possible.

7. The parties are directed to remain present before the First Additional Principal Judge, Family Court, Indore on 16.01.2023.

8. The petition is accordingly disposed off Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 10-Jan-23 12:27:18 PM

(PRANAY VERMA) JUDGE jyoti

Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 10-Jan-23 12:27:18 PM