MP/544/2024 of SMT JASSI GUPTA Vs HIMANSHU GUPTA on 5 February 2024

ORDER

T he present petition is preferred at the instance of petitioner, whoalongwith her spouse respondent namely Himanshu Gupta filed an applicationunder Section 13-B of Hindu Marriage Act, 1955 (hereinafter referred as to 'theAct') before the Principal Judge, Family Court, Gwalior bearing caseNo.1606A/2023 HMA which was dismissed by the Family Court videimpugned order dated 04.01.2024.

2. Precisely stated facts of the case are that marriage of petitioner with the respondent was solemnized on 21.01.2014 as per Hindu Ritual and Rites.After marriage, domestic incompatibility prevailed between the parties which ledto filing of application under Section 13(B) of the Act seeking divorce bymutual consent.

3. Sole grievance of the petitioner and respondent is that the Court belowwithout considering the material aspect and the request made by the parties,placed the matter on 17.06.2024 vide order dated 04.01.2024 by giving coolingperiod of 6 months. The impugned order is contrary to the mandate of theApex Court in the case of Amardeep Singh Vs. Harveer Kaur reported in 2017 (8) SCC 746 wherein the Apex Court held that the period of six monthsas stipulated in Section 13-B of the Act be waived of if there is no possibilitiesof settlement and parties cannot be forced to suffer mental agony by way ofwaiting for further six months.

4. Learned counsel for the respondent is in unison at least in respect of provision stipulated under Section 13-B of the Act that waiting period betweentwo motions be waived of as each of them want to get rid of relationship at theearliest. Thus, prayer for setting aside of impugned order passed by the FamilyCourt has been made jointly by the parties.

5 . Heard learned counsel for the parties and perused the documentsappended thereto.

6. The Apex Court in the case of Amardeep Singh (Supra) has held asunder:- “Applying the above to the present petition, we are of theview that where the Court dealing with a matter issatisfied that a case is made out to waive the statutoryperiod under Section 13 B (2), it can do so afterconsidering the following:

i) The statutory period of six months specified in Section13 B(2), in addition to the statutory period of one yearunder Section 13B(1) of separation of parties is alreadyover before the first motion itself;

ii) All efforts for mediation/conciliation including effortsin terms of Order XXXIIA Rule 3 CPC/Section 23(2) ofthe Act/Section 9 of the Family Courts Act to reunite theparties have failed and there is no likelihood of success inthat direction by any further efforts;

iii) The parties have genuinely settled their differencesincluding alimony, custody of child or any other pendingissues between the parties.

iv) The waiting period will only prolong their agony."

7. Since the parties have already decided to live separately, there are nochances of settlement between them and rest of the issues have already beensettled by them, therefore, keeping the matter pending in order to give somecooling period is nothing but a futile exercise.

8 . Considering the fact situation as well as the mandate of the ApexCourt, the order impugned passed by the Family Court, Gwalior is hereby setaside. Matter is remanded back to the trial Court for taking fresh call over thefacts situation of the case and thereafter pass the order in respect of the prayermade by the parties jointly for waiving of the period of six months for gettingdivorce. Parties are directed to appear before the Court below on dated19.02.2024 wherein the Court below shall consider the application preferredjointly by the parties afresh in terms of the mandate of the Apex Court in thecase of Amardeep Singh (Supra) expeditiously.

9. The petition stands disposed of with the aforesaid directions.

(ANAND PATHAK)