Derish vs Nikita

Alok Awasthi, J

I.A. No.11051/2025 is taken up.

The same is hereby allowed. The defect, as pointed out by the Registry is hereby ignored.

The petitioner before this Court has filed the present petition under Article 227 of the Constitution of India being aggrieved by the order dated 18.11.2025 passed by the Ist Additional Principal Judge, Family Court, Indore in RCS-HM No.435/2025, whereby the application filed by the petitioner and respondent under Section 13-B(2) of the Hindu Marriage Act has been rejected.

It is undisputed that the marriage between the parties has irretrievably broken down. Several attempts have been made for settlement and reunion of the parties, but all failed and thus, parties have decided not live together and agree for mutual dissolution of marriage. The parties are not fulfilling any marital obligations towards each and they living separately since list more than six months. There is no slightest of possibility of reconciliation.

Learned counsel for the petitioner submits that both the parties have jointly filed a petition under Section 13-B(1) of the Hindu Marriage Act, 1955 for divorce by mutual consent before the Family Court, Indore wherein they were referred for mediation before the High Court Mediation Centre, however, the mediation process failed. Thereafter, an application for waive of cooling period of six months as stipulated in sub-section (2) of Section 13-B of the Hindu Marriage Act was filed before the learned Family Court contending therein that statutory period of six months is not mandatory, but directory in nature and the same can be waived off in the interest of justice. Learned Family Court has rejected their application by the impugned order. Hence, present petition is before this Court.

Learned counsel for the respondent has not opposed the aforesaid prayer.

Heard learned counsel for the parties and perused the record.

The Apex Court in the case of Amardeep Singh v/s 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

ii) all efforts for mediation/conciliation including efforts in terms of

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 concerned Court.

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.''

In view of the aforesaid decision so also the subsequent decision rendered by the Apex Court in the case of Amit Kumar v/s Suman Beniwal reported in 2021 SCC OnLine SC 1270 , this Court is of the considered opinion that the parties are not fulfilling any marital obligations towards each other and further they are living separately since last more than six months and there is no possibility of reconciliation as they have jointly filed the application for divorce with mutual consent. Hence, the period mentioned in Section 13-B(2) is not mandatory and it is only directory in nature and can be waived off in the interest of justice.

In view of the above, impugned order dated 18.11.2025 is hereby set aside. The joint application dated 17.11.2025 filed by the parties to waive off the cooling period of six months is allowed and learned Family Court is directed to proceed further as expeditiously as possible.

Parties are directed to appear before the Family Court on 18.12.2025.

With the aforesaid, Miscellaneous Petition stands disposed of.