Madhya Pradesh High Court
Bhumika Pathak vs Akhilesh Pathak on 9 April, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2025:MPHC-IND:9712
1 MP-1857-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 9 th OF APRIL, 2025
MISC. PETITION No. 1857 of 2025
BHUMIKA PATHAK
Versus
AKHILESH PATHAK
Appearance:
Shri Sameer Anant Athawale - advocate for the petitioner.
ORDER
The present petition is filed under Article 227 of the Constitution of
India challenging the order dated 10/03/2025 passed by Additional Principal
Judge, Family Court, Indore in HMA No.432/2025 of Hindu Marriage Act
whereby the application filed by the petitioner for waiving off cooling period
of six months has been rejected.
2. It is argued that both the parties have filed petition for divorce on
mutual consent under Section 13(B) of Hindu Marriage Act, 1955 and they
also moved their application for waiver of period of cooling. Learned trial
court has rejected the application relying on the decision rendered by the
Supreme Court in the matter of Amardeep Singh Vs. harveen Kaur, 2017 (8)
SCC 746. It is submitted that in the application they had clearly stated that
they are living separately for 3 years and there is not marital relationship
during this period. Further, there is no possibility of restitution of conjugal
right between them.
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3. Counsel has also relied upon a subsequent decision rendered by the
Supreme Court in the case of Amit Kumar v. Suman Beniwal reported in
2021 SCC OnLine SC 1270, wherein the Supreme Court has also interpreted
the law laid down in the case of Amardeep Singh v. Harveen Kaur (supra)
and in para 22, 27 and 28 MP No.4135/2022 of the said decision, the
Supreme Court has held, as under: -
" 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.
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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;
(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,
NEUTRAL CITATION NO. 2025:MPHC-IND:9712
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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)
4. Thus, it is submitted by the learned counsel for the parties that in the
pressing 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 that even the conditions
as enumerated in the case of Amardeep Singh v. Harveen Kaur (supra) are
not mandatory and the Court can also exercise its discretion taking into
account the other circumstances as well.
5. On due consideration of the submissions and perusal of the
documents filed on record, including the decision rendered by the Supreme
Court in the case of Amit Kumar v. Suman Beniwal (supra), this Court finds
force with the contentions raised by the learned counsel for the parties and
considering the fact that the parties are already living separately, this Court is
of the considered opinion that the application to waive the cooling off period
of six months ought to have been allowed.
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6. Accordingly, the impugned order dated 10/03/2025 passed in HMA
432/2025 by the Additional Principal Judge, Family Court, Indore is hereby
set aside and the cooling period is waived off. The petition is allowed.
7. The parties are directed to remain present before the Family Court,
Indore on 16/04/2025. The learned Judge of the Family Court is requested to
take-up the matter and make all endeavour to decide the divorce petition on
mutual consent on merits, as expeditiously as possible.
8. Accordingly, the present petition stands disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
Aiyer
