Aadish Surana vs Divya Jain)

Anil Verma, J

On the joint prayer of both the parties matter is finally heard at motion stage.

Learned counsel for the respondent submits that he has no objection if this petition is allowed.

This petition under Article 227 of the Constitution of India has been filed against the impugned order dated 02/12/2021 passed by Additional Principal

Judge Family Court Ujjain in HMA Case No.509/2021 by which the application filed by petitioner under section 13-B of Hindu Marriage Act has been

rejected.

It is undisputed that the marriage between the parties has irretrievably broken down as many attempts have been made for settlement and reunion of

the parties but all failed and thus parties have decided not to live together and agree for mutual dissolution of marriage. The parties are not fulfilling

any marital obligations towards each other and they are living separately since 08/02/2020 and there is no slightest of possibility of reconciliation.

Learned counsel for the petitioner submits that both the parties have filed joint petition under Section 13-B of Act for divorce by mutual consent before

the learned Family Court, Ujjain. He further submits that an application for waiver of cooling period of 6 months as stipulated in sub-section 2 of

Section 13-B of Hindu Marriage Act, 1955 was filed before the learned Family Court contending therein that statutory period of 6 months is not

mandatory, but directory in nature, which can be waived off in the interest of justice.

The learned Family court adjourned the case for second hearing on 14/06/2022. Learned family court has rejected their application by the impugned

order. Hence this petition is filed before this court.

The Supreme Court in the case of Amardeep Singh Vs. Harveen Kaur reported in (2017) 8 SCC 746 has held as under:-

“19. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out

to waive the statutory period under Section 13B(2), it can do so after considering the following:

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 32-A 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 we are of the view that the period mentioned in Section 13B(2) 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.â€​

After considering the above decision in the case of Amardeep Singh (supra) this Court is of the considered view that marriage of both the parties was

solemnized on 20/08/2019. They are not fulfilling any marital obligations towards each other and further they are living separately since 08/02/2020 and

there is no possibility of reconciliation because both the parties have decided that they will not live together and they are agreed for dissolution of their

marriage by mutual consent. The period mentioned in section 13-B(2) is not mandatory and it is only directory in nature and it can be waived off in the

interest of justice. But the Family court has committed an error by rejecting the application filed by the parties.

In view of the aforesaid, the impugned order dated 02/12/2021 cannot be sustained and is hereby set aside. The trial court is directed to dispose of the

joint petition under Section 13-B of Hindu Marriage Act filed by both the parties in accordance with law within a period of 15 days from the date of

receipt of certified copy of this order.

CC as per rules.