Madhya Pradesh High Court

Smt. Sonali Bhardwaj vs Naveen Bhargava on 7 March, 2025

Author: Hirdesh

Bench: Anand Pathak, Hirdesh

         NEUTRAL CITATION NO. 2025:MPHC-GWL:5338




                                                                  1                             MP-784-2025
                              IN     THE       HIGH COURT OF MADHYA PRADESH
                                                     AT GWALIOR
                                                          BEFORE
                                            HON'BLE SHRI JUSTICE ANAND PATHAK
                                                             &
                                              HON'BLE SHRI JUSTICE HIRDESH
                                                     ON THE 7 th OF MARCH, 2025
                                                   MISC. PETITION No. 784 of 2025
                                                      SMT. SONALI BHARDWAJ
                                                              Versus
                                                       NAVEEN BHARGAVA
                           Appearance:
                              Shri Rishikesh Bohare- learned counsel for petitioner.
                              Shri Anil Jha- learned counsel for respondent.

                                                                      ORDER

Per: Justice Hirdesh

Heard finally at motion stage, with the consent of both parties. This Miscellaneous Petition filed by petitioner-wife under Article 227 of the Constitution of India against order dated 30/01/2025 (Annexure P-1) passed in Case No. 41 of 2025 (HMA) (wrongly mentioned as 41/2015 in the impugned order) by Additional Principal Judge, Family Court, Gwalior,

whereby a joint application filed by parties therein to waive off the mandatory cooling period of six months' time as provided under Section 13- B of Hindu Marriage Act, 1955 (hereinafter referred to as '' the HM Act'') has been rejected.

It is the contention of petitioner that she and respondent got married on 26/01/2004 according to Hindu rites and rituals. Thereafter, out of wedlock

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2 MP-784-2025 one daughter was born on 15/06/2007. On account of irreconcilable differences, both of them separated from 2015. Since there was no possibility of conciliation between the parties and no dispute was pending between them, therefore, they filed an application under Section 13-(B) of HM Act for decree of divorce by mutual consent. Relying on the decision of Hon'ble Apex Court in the case of Amardeep Singh Vs. Harveen Kaur, reported in (2017) 8 SCC 746, a joint application seeking waive off the cooling period was also filed inter alia stating that petitioner is suffering with pancreatic ulcer and for getting medical treatment of said disease she wants to go to Lmpoe California and also wants to settle permanently there. It is further contended that the aforesaid application to waive off the cooling period of six months came to be dismissed by the Family Court vide

impugned order dated 30/01/2025, mentioning the fact that petitioner and respondent have been living seperately from 2015 i.e. around nine years and no plausible explanation has been given by both the parties that why he can not wait of six months to record the statement before the Family Court, therefore, the statutory period of six months cannot be waived off because all the conditions are not fulfilled.

Being aggrieved by order dated 30/01/2025, petitioner filed the instant miscellaneous petition under Article 227 of the Constitution of India.

Further, it is contended that as has already been held by the Hon'ble Apex Court even the conditions as enumerated in the case of Amardeep Singh (supra) are not mandatory, the Court can exercise its discretion taking into account other circumstances as well. The learned Family Court has

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committed an error in deciding the application without applying its judicial mind. Hence, prayed for setting aside the impugned order.

While dealing with the matter in regard to waive the statutory period under Section 13-B(2) of HM Act, the Hon'ble Apex Court in the case of Amardeep Singh (supra) has observed as under:-

''(i) The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(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 32A 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.

Since I am of the view that the period mentioned in Section 13B(2) of HM Act is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there

NEUTRAL CITATION NO. 2025:MPHC-GWL:5338

4 MP-784-2025 are chances of alternative rehabilitation.''

Subsequently, the Hon'ble Apex Court in the decision of Amit Kumar vs. Suman Beniwal, 2021 SCC Online SC 1270 has interpreted the law laid down in Amardeep Singh (supra) and in paragraphs 22, 27 and 28 has held as under:-

"22. The Family Court, as well as the High Court, have misconstrued the judgment of this Court in Amardeep Singh vs. 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;

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(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)

On due consideration of the contentions and perusal of the impugned order as well as the documents available on record, including the decision rendered by the Hon'ble Apex Court in the case of Amit Kumar (supra) , this Court finds force with the contentions raised by the parties and considering the fact that the parties have been living seperately since 2015. All the efforts of reconciliation had failed

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and they are unwilling to live together as husband and wife and there is no dispute pending between the parties, 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 30/01/2025 (Annexure P-1)

passed in Case No. 41/2025 (HMA) by Additional Principal Judge, Family Court, Gwalior deserves to be and is hereby set aside. The learned Family Court is directed to waive off the cooling period of six months with a further direction to consider and finally decide the divorce petition by mutual consent filed under Section 13-B of the HM Act as expeditiously as possible, keeping in view the judgment passed in the case of Amit Kumar (supra). The parties are directed to remain present before the Family Court concerned on 17/03/2025.