Durgesh Ahirwar vs None
2023 Latest Caselaw 9276 MP

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                       BEFORE
                                       HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                                 ON THE 21 st OF JUNE, 2023
                                             MISC. PETITION No. 2726 of 2023

                          BETWEEN:-
                          1.    DURGESH AHIRWAR S/O SHRI RAMAWATAR
                                AHIRWAR, AGED ABOUT 31 YEARS, OCCUPATION:
                                LABOUR R/O CHOUDHARI MUHALLA, SANJEEVNI
                                NAGAR GARHA, DISTT. JABALPUR (MADHYA
                                PRADESH)

                          2.    SMT. AARTI CHOUHAN W/O SHRI DURGESH
                                AHIRWAR D/O SHRI SURESH CHOUDHARI, AGED
                                ABOUT 30 YEARS, OCCUPATION: HOUSEWIFE R/O
                                NEAR GHAMAPUR CHOURAHA BHAN TALAIYA,
                                DISTT. JABALPUR (MADHYA PRADESH)

                                                                                           .....PETITIONER
                          (BY SHRI AJAY SEN - ADVOCATE)

                          AND
                          N O N E VILLAGE     NONERA BHIND MP            CURRENT
                          MANGLESHWAR         ROAD  GHASMANDI            (MADHYA
                          PRADESH)

                                                                                        .....RESPONDENT


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

This is a petition filed by the petitioner assailing the order dated 26-04- 2023 passed by the Family Court, Jabalpur whereby an application moved by the petitioner under Section 13B(2) of the Hindu Marriage Act, 1955 for reducing the cooling period of six months, has been dismissed.

2 . Learned counsel for the petitioner contends that the parties Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 6/23/2023 12:43:37 PM

entered into wedlock on 08-05-2014. Since 17-03-2017 the parties are living separately. Earlier also, a petition for divorce was filed which has now been dismissed in view of the amicable settlement by which the parties have agreed for divorce on mutual consent.

3. Learned counsel for the petitioner vehemently argued that in view of the law laid down by the Apex Court in the case of Amit Kumar vs. Suman Beniwal, 2021 SCC OnLine SC 1270, the order passed by the Court below deserves to be set aside.

4. Considered the submissions advanced on behalf of the petitioner.

5. The Apex Court in the case of Amit Kumar vs. Suman Beniwal

(supra) in paras 22, 27 and 28 ruled thus :

"2 2 . 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.

xx xx xx xx xx 2 7 . 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;

Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 6/23/2023 12:43:37 PM

(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]

6. Therefore, if the factual matrix of the case is tested on the anvil of

Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 6/23/2023 12:43:37 PM

the law laid down by the Apex Court in Amit Kumar vs. Suman Beniwal (supra), it appears that the parties have withdrawn their respective cases and they are living separately since 2017. Therefore, no fruitful purpose would be served by not reducing the cooling period of six months.

7. Accordingly, the impugned order dated 26-04-2023 passed by the Family Court, Jabalpur is set aside. The joint application moved by the parties for the purpose of reducing of the cooling period deserves to be allowed. Family Court, Jabalpur is directed to proceed accordingly.

8. With the aforesaid, the petition stands allowed.

(MANINDER S. BHATTI) JUDGE ac

Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 6/23/2023 12:43:37 PM