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.
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
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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
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
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
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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
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
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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.
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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.