Rakesh Soni vs Vandana

Alok Awasthi, J

This petition under Article 227 of the Constitution of India has been filed against the impugned order dated 10.12.2025 passed by the Additional Judge to the Court of Principal Judge, Family Court, District Indore in RCS-HM No.1931/2025 by which the application filed by petitioner and respondent under Section 13-B(2) of the Hindu Marriage Act, 1955 (in short "HMA") 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 last more than five years and there is no slightest of possibility of reconciliation.

Counsel for the petitioner submits that both the parties have filed joint petition under Section 13-B of the HMA for divorce by mutual consent before the Family Court, Indore. He further submits that an application for waiving off cooling period of 6 months as stipulated in sub-section 2 of Section 13-B of HMA was filed before the 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 and thus prayed for waiving off the cooling period. The petitioner has already handed over the demand of Rs.5.50 lacs to the respondent towards alimony and all the pending cases between them have been withdrawn. The Family Court has rejected their application by the impugned order and directed the parties for mediation on 05.05.2026. Hence this petition is filed before this Court.

Counsel for the respondent has not opposed the petition.

Heard counsel for the parties and perused the record.

The Apex Court in the case of Amardeep Singh Vs. Harveen Kaur [(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.”

After considering the above decision in the case of Amardeep Singh (Supra) so also the subsequent decision rendered by the Apex Court in the case of Amit Kumar Vs. Suman Beniwal [2021 SCC Online SC 1270 ], this Court is of the considered view that marriage of both the parties was solemnized on 12.05.2019.

They are not fulfilling any marital obligations towards each other and further they are living separately since more than five years 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 error by rejecting the application filed by the parties.

In view of the aforesaid, the impugned order dated 10.12.2025 cannot be sustained and is hereby set aside. In case if the mediation fails, then the Trial Court is directed to reconsider and dispose of the joint petition under Section 13-B of HMA filed by both the parties, in accordance with law. Parties are directed appear before the Trial Court on 05.01.2026.

With the aforesaid, the petition is allowed and stands disposed of. Certified copy, as per Rules.