Uttarakhand High Court
Unknown vs Vidhika Agarwal on 1 February, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
Office Notes,
SL. Date reports,
No. orders or COURT'S OR JUDGE'S ORDERS
proceedings
or directions
and
Registrar's
order with
Signatures
WPMS No.295 of 2024
With
(Urgency Appl. No.01 of 2024)
Hon'ble Rakesh Thapliyal, J.
1. Mr. Saurabh Pandey, learned counsel for the
petitioner.
2. Mr. Gaurav Kumar Pandey, learned counsel for
the respondent appearing through video conferencing.
3. By the instant petition, the petitioner is
challenging the order dated 22.01.2024 whereby the
application of the petitioner for waiving of the cooling
period of six months for the second motion in O.S.
No.395 of 2023 Ujjwal Jain vs. Vidhika Agarwal
preferred under Section 13B of Hindu Marriage Act
has been rejected.
4. The facts of the case are that the petitioner was
married with the respondent on 08.08.2022 as per
Hindu rites and rituals and out of their wedlock no
issue has been born. Subsequently, due to
matrimonial discord, arose between the parties, both
of them started living separately since 03.10.2022 and
decided to dissolve the marriage by way of mutual
consent. Thereafter with the consent of both the
parties divorce petition was filed by way of mutual
consent under Section 13B of Hindu Marriage Act. In
this proceeding, the first motion was completed on
09.10.2023 and subsequently an application was
jointly moved by the parties for waiving of the
cooling period of six months for the second motion
but instead of passing the order on the said
application, the matter was fixed for 11.04.2024.
Subsequently, the petitioner preferred a writ petition
being WPMS No.195 of 2024 wherein relief was
sought that the Principal Judge, Family Court,
Haldwani be directed to decide the application
preferred for waiving of the cooling period. The said
writ petition was disposed of finally by the
Coordinate Bench of this court on 12.01.2024
whereby a direction was issued to the Principal Judge,
Family Court, Haldwani to decide the application for
waiving of the cooling period of six months for the
second motion in O.S. No.395 of 2023 preferred
under Section 13B of the Hindu Marriage Act within
a period of fifteen days from the date of production of
certified copy of the order.
5. Thereafter in compliance of the direction
issued by this Court, the Principal Judge, Family
Court, Haldwani decided the said application on
22.01.2024 and rejected the same. While rejecting the
said application the Principal Judge, Family Court,
Haldwani considered the judgment rendered by
Hon'ble Apex Court in the case of Shilpa Sailesh vs.
Varun Sreenivasan MANU/SC/0502/2023 decided on
01.05.2023 and after taking into consideration the
observations made in para 20 and 21 the said
judgment and rejected the application on the ground
that since under Section 13B of the Hindu Marriage
Act six months cooling period cannot waived of by
the court and this power is only vest with the Hon'ble
Supreme Court under Article 142(1) of the
Constitution of India. Being aggrieved with this order,
the present writ petition has been filed.
6. Learned counsel for the petitioner Mr. Saurabh
Pandey further placed reliance on the same judgment
i.e. in the case of Shilp Sailesh (Supra) and refer para
17 of the said judgment. By placing reliance on the
said judgment learned counsel for the petitioner
submits that in the judgment the Hon'ble Supreme
Court discussed the issue with regard to the waiving
of the cooling period by framing a question that
whether the cooling period of six months is
mandatory or discretionary and it was held that
cooling period can be waived of by the court where
the proceedings have remained pending for a long in
the courts.
7. Learned counsel for the petitioner further
submits that in view of the observation as laid down
by Hon'ble the Supreme Court, in this judgment the
cooling of period can be waived of by the court.
Therefore, the order rejecting the application by the
Principal Judge, Family Court, Haldwani dated
22.01.2024 is unsustainable, since in view of the said
judgment even the court including the Family Court
can waive of the cooling period. Apart from this,
learned counsel for the petitioner also placed reliance
on the judgment of High Court of Punjab and
Haryana, Chandigarh in the case of Mandeep Kaur vs.
Rajiv Girdhar decided on 19.12.2023 and submits that
Punjab & Haryana High Court after relying upon the
judgment of Hon'ble Apex Court in the case of Shilpa
Sailesh (Supra) and granted permission to the parties
to move a petition under Section 13 B of the Hindu
Marriage Act before the expiry of period of one year
from the date of marriage.
8. Here in the present case, the marriage was
solemnized on 08.08.2022 and a divorce petition was
filed on 09.10.2023 and they are living separately
since 03.10.2022 which itself reveals that since more
than one year both of them are living separately.
9. I have also perused the order impugned dated
22.01.2024 and on perusal of the same, it appears that
learned Principal Judge, Family Court, Haldwani have
not gone through with para 17 of the judgment
rendered by Hon'ble Supreme Court in the case of
Shilpa Sailesh (Supra) wherein it is clearly observed
that cooling period can also be waived of by the court.
10. Therefore, the order impugned is unsustainable
and is liable to be set aside. Resultantly, the writ
petition is allowed. The impugned order dated
22.01.2024 passed by the Principal Judge, Family
Court, Haldwani is set aside and the Family Court is
directed to decide the application of the parties moved
for waiving of the cooling period, a fresh after taking
into consideration the observation of the Hon'ble
Apex Court as observed in the case of Shilpa Sailesh
vs. Varun Sreenivasan MANU/SC/0502/2023 decided
on 01.05.2023 particularly the observations as made
in para 17 of the judgment.
11. Urgency application stands disposed of.
(Rakesh Thapliyal, J.)
Vacation Judge
01.02.2024
Arti
