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Madhya Pradesh High Court · body

2022 DIGILAW 1574 (MP)

Pooja v. Vivek Shrivastav

2022-12-20

SUBODH ABHYANKAR

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JUDGMENT Subodh Abhyankar, J. - This petition has been filed by the petitioner under Article 227 of the Constitution of India against the order dated 07.12.2022, passed in Case No.HMA-5102/2022 by the Principal Judge, Family Court, Indore whereby the petitioner's application for waiver of cooling off of the period of one year and six months for entertaining the petition filed under section 13-B of the Hindu Marriage Act for divorce by mutual consent has been rejected. 2. Counsel for the petitioner has submitted that the marriage between the petitioner and the respondent solemnized on 26.06.2012, and subsequently due to matrimonial disputes, they are residing separately since 02.07.2021. They have decided to resolve their dispute by filing an application for divorce by mutual consent and thus on 22.09.2022, i.e. after a period of one year from the date they started living separately, the application has been filed under section 13-B of the Hindu Marriage Act. On 06.12.2022, the parties jointly filed an application for cooling off the minimum period of six months on the ground that they are residing separately since 02.07.2021. The aforesaid application has been rejected by the Principal Judge, Family Court, Indore relying upon the judgment passed by the Supreme Court in the case of Amardeep Singh Vs. Harveen Kaur reported in the year 2017 Vol.8 SCC 746 , and holding that it is mandatory for the parties to complete the period of six months after the divorce petition has been filed. Counsel for the petitioner has submitted that the aforesaid issue has already been decided by the court on 19.09.2022 in M.P. No.4135/2022 (Vaibhav Pancholi Vs. Priya) and also by the coordinate bench of this Court in case of (Kirti Mansare Vs. Ashish Mansare) in M.P. No.5924/2022 decided on 07.12.2022, wherein this court has also taken into account the decision rendered by the Supreme Court in case of Amardeep Singh (Supra) and has held that such application for waiver of cooling off period can be allowed. 3. Counsel for the respondent has submitted that the application ought to have been allowed as the parties have already decided to part their ways after reasonable deliberation and have filed the application for divorce by mutual consent on 02.07.2021 and as of now it has already been. 4. Heard. 5. 3. Counsel for the respondent has submitted that the application ought to have been allowed as the parties have already decided to part their ways after reasonable deliberation and have filed the application for divorce by mutual consent on 02.07.2021 and as of now it has already been. 4. Heard. 5. On due consideration of submissions and perusal of the documents filed on record and also the order passed by this court in case of Vaibhav Pancholi (Supra), it is found that in that case this court has made the following observations:- 6. 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 of the said decision, the Supreme Court has held, as under: - 7. 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 . xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 27. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 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 (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 Kaur (supra) are not mandatory and the Court can also exercise its discretion taking into account the other circumstances as well . It is also submitted that a sum of Rs.11 lacs as permanent alimony has also been given by the petitioner to the respondent by way of a bank draft in her name. 5. It is also submitted that a sum of Rs.11 lacs as permanent alimony has also been given by the petitioner to the respondent by way of a bank draft in her name. 5. On due consideration of the submissions and on 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 since last more than one year and two months (14 months), the respondent wife has already withdrawn all the cases lodged against the petitioner and has also received a bank draft of Rs.11 lacs towards the permanent alimony, this Court is of the considered opinion that the application to waive the cooling off period of six months ought to have been allowed. 6. Accordingly, the impugned order dated 05.08.2022 (Annexure P/4) passed in Hindu Marriage Case No.1406/2022 by the learned Principal Judge, Family Court, Indore (MP) is hereby set aside and the joint application dated 20.07.2022 (Annexure P/3) filed by the parties to waive the cooling off period of six months is hereby allowed and the learned Judge of the Family Court is requested to proceed further, as expeditiously as possible.(Emphasis supplied) 8. It is apparent from the above that the parties are already residing separately since last more than 17 months and there are no chances of reconciliation between them as the parties have decided not to reside together and in such circumstances the reasoning assigned in the aforesaid decision of this court in case of Vaibhav Pancholi (Supra) shall be applicable in the present case also and accordingly the petition is allowed and the impugned order is set aside and the learned trial Court is directed to proceed further in this case and pass the decree in accordance with law. 9. Parties are directed to appear before the learned trial Court on 04.01.2023. 10. This Misc. Petition is allowed and disposed of.