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Smt. Mitali Singi vs Varun Singi on 15 July, 2019

1 M.P. No. 3455/19

THE HIGH COURT OF MADHYA PRADESH
M.P. No. 3455/19
(Smt. Mitali Singi Vs.Varun Singi)

Gwalior, Dated 15/7/19

Shri Nirmal Sharma, learned counsel for the petitioner.

1.

Rejection by the Family Court of an application preferred jointly

by the rival parties (husband and wife) for waiving cooling period of six

months in a pending divorce petition u/S. 13-B of Hindu Marriage Act

has impelled the petitioner to invoke supervisory jurisdiction of this

court under SectionArticle 227 of the Constitution of India.

2. Learned counsel for the petitioner is heard.

3. A petition seeking divorce by mutual consent u/S. 13-B of Hindu

Marriage Act was moved by the rival parties before the Family Court

accompanied by application seeking waiver of cooling period of six

months, on the ground that the rival parties are not cohabiting since last

more than 18 months, there is no hope of settlement or resumption of

cohabitation, and the rival parties are embroiled in various litigation

launched against each other since last seven years where possibility of

resumption of matrimonial accord has extinguished and thus waiting for

another six months for grant of divorce by mutual consent would

amount to prolonging the agony. The said application also contained

averments that all pre-conditions for divorce by mutual consent have

been fulfilled by both parties.

4. It is submitted by learned counsel for petitioner that despite all the

conditions necessary for waiver of cooling period having been satisfied,

Family Court has declined the prayer for waiver thereby compelling the
2 M.P. No. 3455/19

rival parties to wait for six long months, prolonging the agony, heart

burning and frustration.

5. After hearing learned counsel for the petitioner, this court is of the

considered view that the impugned decision of Family Court dated

22.06.2019 is in variance to the law laid down by the Apex Court in the

case of Amardeep Singh Vs. Harveen Kaur reported in (2017) 8 SCC

746 where the highest court of the land laid down certain pre-requisites

for allowing waiver of cooling period, which are reproduced below for

ready reference and convenience:-

“18. 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 XXXIIA 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.”

6. A bare perusal of contents of application preferred jointly by the

rival parties seeking waiver of cooling period dated 3/5/19 vide P/3,

reveals that pre-conditions for waiver laid down by the Apex Court in

Amardeep Singh (supra) appear to have been satisfied. Parties have

jointly stated in the said application that they have not been cohabiting

since last more than 18 months. All the terms and conditions subject to
3 M.P. No. 3455/19

which divorce by mutual consent is sought are fulfilled and all hopes of

mediation/conciliation/settlement/reunion have failed and the marriage

for all practical reasons is irretrievably broken down. Yet the learned

Family Judge declined the prayer for waiver which is beyond

comprehension.

7. Application dated 3/5/19 vide P/3 is not accompanied by an

affidavit of both the rival parties and therefore, it is not known as to

whether any such affidavit was filed in support of the application dated

3/5/19 for waiver of cooling period, before the Family Court.

8. Learned counsel for the petitioner is unable to make any

revelation in that regard.

9. However, having found on prima facie assessment of the case that

pre-requisites for waiving of cooling period of six months having been

satisfied as discussed above, this court would not like to prolong the

agony of rival parties even for a minute more.

10. This court thus disposes of this petition by setting aside the

impugned order dated 22/6/19 so far as it rejects the application for

waiving of cooling period.

10.1 Learned Trial Judge is directed to reconsider the application dated

3/5/19 vide P/3 if the same is supported by an affidavit already and pass

suitable orders at the earliest.

10.2 In case, it is found by the learned Family Judge that the

application dated 3/5/19 vide P/3 filed for waiving of cooling period is

not accompanied with an affidavit, then learned Family Judge is

expected to allow the rival parties to file a fresh application for waiving
4 M.P. No. 3455/19

cooling period and decide the same at the earliest.

10.3 Looking to the long standing matrimonial discord between the

parties who have now decided to part ways after failure of all possible

means of settlement and the marriage having irretrievably broken down,

this court would expect the learned Family Judge to save the rival

parties from prolongation of agony and decide the application for

waiving of cooling period strictly in terms of decision of Apex Court in

Amardeep Singh (supra) thereby paving the way for the parties to

peacefully part their ways and start their lives afresh.

11. Before parting this court deems it appropriate to remind the

learned Family Judge of the object behind the SectionFamily Court Act, 1984

and the malady intended to be cured by it’s enactment.

11.1 The procedural approach is to be radically different, liberal and

relaxed from that adopted in ordinary civil proceedings.

11.2 Object is to achieve speedy settlement of family disputes.

12. The aforesaid special nature, object, ambit and sweep of the

SectionFamily Court Act is founded upon the fact that family is the smallest

building block of humanity and thus it’s preservation and nurturing is

essential. However, if efforts towards restoring accord, harmony and

cohabitation fail, the Family Court ought not to become cause for

prolonging the agony, by indulging in repeated futile conciliation,

procrastination, procedural technicalities and avoidable adjournments.

Family Court should rise to the occasion and put an end to the miseries,

heart-burning and frustrations of the parties who have agreed to part

ways, by exercising it’s jurisdiction to sever the irretrievably broken ties.
5 M.P. No. 3455/19

13. This court has not reason to doubt the sagacity of the learned

Additional Principal Family Judge, but the instant case provokes this

court to strike an advisory note supra.

14.` With the aforesaid observation, hope and expectation, this petition

stands disposed of.

(Sheel Nagu)
Judge

ojha

YOGENDRA OJHA
2019.07.19
11:39:01 -07’00’

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