Madhya Pradesh High Court
Shyam Gupta vs Divya Gupta on 29 January, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:2263
1 MP-230-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 29th OF JANUARY, 2025
MISC. PETITION No. 230 of 2025
SHYAM GUPTA
Versus
DIVYA GUPTA
Appearance:
Ms. Sarika Gupta - Advocate for the petitioner.
Shri Rajendra Tiwari - Advocate for respondent.
ORDER
1 . By this petition preferred under Article 227 of the Constitution of
India, the petitioner has challenged the order dated 24/12/2024 (Annexure
P/5) passed in RCSHM No.11/2024 by the First District and Sessions Judge,
Kukshi, District Dhar, whereby a joint application filed by the parties herein
to waive the mandatory cooling off period of six months as provided under
Section 13-B (2) of the Hindu Marriage Act, 1955 (hereinafter refereed to as
'the Act' ) has been rejected.
2. Admittedly the petitioner and the respondent's marriage was
solemnized on 16/4/2015 and they are living separately since 25/06/2022,
whereas an application under Section 13-B of the Act for divorce by mutual
consent has been filed on 3/10/2023. Thereafter, a joint application to waive
off cooling period of six months was filed on 3/12/2024 wherein it was
mentioned that since both the parties have already settled their disputes, the
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2 MP-230-2025
same be allowed and the main application for grant of divorce by mutual
consent be considered and allowed. The aforesaid application has been
rejected by the Family Court which has directed for the matter to be listed on
10/3/2025 as directed earlier.
3. Learned counsel for the parties have relied upon a decision of the
Supreme Court in the case of Amit Kumar Vs. Suman Beniwal reported in
2021 SCC Online SC 1270 wherein it has been held in Paragraph Nos.22, 27
and 28 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;
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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)
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 Kau r reported in
2017 (8) SCC 746 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 and the decision rendered by the Supreme Court
in the case of Amit Kumar V/s. Suman Beniwal (supra) the contention of
the learned counsel for the parties appears to be having merit. The parties
are already living separately since more than 2 years. All the cases between
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4 MP-230-2025
them are stated to be withdrawn by them against each other. Thus, this
Court is of the opinion that the application to waive the cooling off period of
six months ought to have been allowed.
6. Accordingly, the impugned order dated 24/12/2024 (Annexure P/5)
passed in RCSHM No.11/2024 by the First District and Sessions Judge,
Kukshi, District Dhar, is hereby set-aside and the joint application dated
3/12/2024 filed by the parties to waive the cooling off period of six months
is hereby allowed and the Court below is requested to proceed further, as
expeditiously as possible.
7. The parties are directed to remain present before the the First
District and Sessions Judge, Kukshi, District Dhar, on 31/1/2025.
8. Accordingly, Miscellaneous Petition No.230/2025, stands disposed
of.
(PRANAY VERMA)
JUDGE
SS/-
