[Cites 10, Cited by 0]
Madhya Pradesh High Court
Smt. Anju Bhadoriya vs Hardeep Singh Tomar on 16 April, 2026
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2026:MPHC-GWL:12217
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 16 th OF APRIL, 2026
MISC. PETITION No. 2314 of 2026
SMT. ANJU BHADORIYA
Versus
HARDEEP SINGH TOMAR
Appearance:
Shri Vedant Sharma - Advocate for petitioner.
Ms. Abhilasha Rai- Advocate for respondent.
ORDER
This petition has been heard finally at the motion stage with the consent of
both parties.
2. The petitioner has filed this Miscellaneous Petition under Article 227 of
the Constitution of India, challenging the order dated 28-02-2026 passed in HMA
Case No.64 of 2026 by the Family Court, Gwalior, whereby the Family Court
rejected a joint application filed by the parties to waive the mandatory six-month
cooling-off period provided under Section 13-B(2) of the Hindu Marriage Act,
1955 (hereinafter referred to as "the HM Act").
3. The petitioner contends that she and the respondent were married on 22-
11-2024 at Gwalior in accordance with Hindu rites and rituals. However, due to
irreconcilable differences, the parties have been living separately since 04-12-
2024. As there was no possibility of conciliation and no outstanding disputes
remained, they filed an application under Section 13-B of the HM Act for a decree
of divorce by mutual consent. Relying on the decision of the Hon'ble Apex Court
in Amardeep Singh Vs. Harveen Kaur [(2017) 8 SCC 746] , a joint application for
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waiver of the cooling-off period was filed, stating that the parties had been living
apart for a significant duration. It is further submitted that all disputes have been
amicably settled outside of Court. Gifts, ornaments, and other belongings
exchanged at the time of marriage have been returned/exchanged. All claims
against each other have been fully and finally settled. The respondent is currently
serving in the BSF and is posted in Assam; given the nature of his duties and
limited leave, frequent travel to Gwalior for court proceedings is exceptionally
difficult. Despite these grounds, the Family Court dismissed the application, citing
the non-fulfillment of the conditions required to waive the cooling-off period.
4. Aggrieved by this rejection, the petitioner has approached this Court
under Article 227 of the Constitution of India.
5. It is further contended that the Hon'ble Apex Court has held that the
conditions enumerated in the Amardeep Singh (supra) case are not mandatory but
directory. The petitioner argues that the Court may exercise its discretion based on
individual circumstances and that the learned Family Court erred by failing to
apply its judicial mind to the specific facts of this case.
6. While addressing the waiver of the statutory period under Section 13-B(2)
of the HM Act, the Hon'ble Apex Court in Amardeep Singh (supra) 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;
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(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 are chances of alternative rehabilitation.''
7. 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;
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(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)
8. Upon due consideration of the submissions and a perusal of the record and
the impugned order, this Court finds merit in the petitioner's contentions. Given
that the parties have been living separately for a long period, reconciliation efforts
have failed, they are unwilling to resume cohabitation, and all disputes are settled,
this Court is of the considered opinion that the application to waive the six-month
cooling-off period ought to have been allowed.
9. Accordingly, the impugned order passed by the Family Court is hereby set
aside. The joint application to waive the mandatory six-month cooling-off period
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i s allowed. The Family Court, Gwalior, is directed to consider and decide the
divorce petition filed under Section 13-B of the HM Act as expeditiously as
possible, in light of the judgment in Amit Kumar (supra). Both parties are directed
to appear before the concerned Family Court on a date to be fixed by said Court.
10. The petition stands allowed and is disposed of accordingly.
11. A copy of this order be sent to the Family Court concerned for information
and necessary compliance.
Certified Copy as per rules
(HIRDESH)
JUDGE
MKB
