Madhya Pradesh High Court
Smt. Deepanshi Dudawat vs Anshuman Dudawat on 7 April, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:8025
1 MP-1783-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 7 th OF APRIL, 2025
MISC. PETITION No. 1783 of 2025
SMT. DEEPANSHI DUDAWAT
Versus
ANSHUMAN DUDAWAT
Appearance:
Shri Santosh Agrawal- Advocate for petitioner.
Shri Arvind Dudhawat- Senior Advocate with Shri Rahul Jha- Advocates for
respondent.
ORDER
Per: Justice Hirdesh
1. Heard finally at motion stage, with the consent of both parties.
2. This Miscellaneous Petition filed by petitioner under Article 227 of
the Constitution of India against order dated 18.03.2025 (Annexure P-1)
passed in Case No. 85/2025 (HMA) by Additional Principal Judge, Family
Court, Gwalior, whereby a joint application filed by parties therein to waive
off the mandatory cooling period of six months’ time as provided under
Section 13-B of Hindu Marriage Act, 1955 (hereinafter referred to as ” the
HM Act”) has been rejected.
3. It is the contention of petitioner that he and respondent got married
on 21.04.2022 according to Hindu rites and rituals. On account of
irreconcilable differences, both of them separated since 26.11.2023. Since
Signature Not Verified
Signed by: PRACHI MISHRA
Signing time: 08-Apr-25
10:35:45 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:8025
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there was no possibility of conciliation between the parties and no dispute
was pending between them, therefore, they filed an application under
Section 13-(B) of HM Act for decree of divorce by mutual consent. Relying
on the decision of Hon’ble Apex Court in the case of Amardeep Singh Vs.
Harveen Kaur, reported in (2017) 8 SCC 746, a joint application seeking
waive off the cooling period was also filed inter alia stating that both
petitioner and respondent have been living seperately living since
26.11.2023. Thereafter, many times parents and relatives tried to reconcile
between both of them, but due to ideological differences further marital life
of petitioner and respondent can not be succeeded in future. There is no
possibility to live with each other. It is contended that the aforesaid
application to waive off the cooling period of six months came to be
dismissed by the Family Court vide impugned order dated 18.03.2025,
mentioning the fact that petitioner and respondent have not mentioned any
reason or factual circumstances in detail in their application and no
documents have been brought on record to support the application, therefore,
the statutory period of six months cannot be waived off because all the
conditions are not fulfilled.
4. Being aggrieved by order dated 18.03.2025, petitioner filed the
instant miscellaneous petition under Article 227 of the Constitution of India.
5. Further, it is contended that as has already been held by the Hon’ble
Apex Court even the conditions as enumerated in the case of Amardeep
Singh (supra) are not mandatory, the Court can exercise its discretion taking
Signature Not Verified
Signed by: PRACHI MISHRA
Signing time: 08-Apr-25
10:35:45 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:8025
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into account other circumstances as well. The learned Family Court has
committed an error in deciding the application without applying its judicial
mind. Hence, prayed for setting aside the impugned order.
6. While dealing with the matter in regard to waive the statutory period
under Section 13-B(2) of HM Act, the Hon’ble Apex Court in the case of
Amardeep Singh (supra ) has observed as under:-
”(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 32A 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 I am of the view that the period mentioned in Section 13B(2)
of HM Act 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
Signature Not Verified
Signed by: PRACHI MISHRA
Signing time: 08-Apr-25
10:35:45 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:8025
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are chances of alternative rehabilitation.”
Subsequently, the Hon’ble Apex Court in the decision of Amit Kumar vs.
Suman Beniwal, 2021 SCC Online SC 1270 has interpreted the law laid
down in Amardeep Singh (supra) and in paragraphs 22, 27 and 28 has held
as under:-
“22. The Family Court, as well as the High Court, have
misconstrued the judgment of this Court in Amardeep Singh vs.
Harveen Kaur (supra) and proceeded on the basis that this Court
has held that the conditions specified in paragraph 19 of the said
judgment, quoted hereinabove, are mandatory and that the
statutory waiting period of six months under Section 13B (2) can
only be waived if all the aforesaid conditions are fulfilled,
including, in particular, the condition of separation of at least one
and half year before making the motion for decree of divorce.
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27. For exercise of the discretion to waive the statutory waiting
period of six months for moving the motion for divorce under
Section 13B (2) of the Hindu Marriage Act, the Court would
consider the following amongst other factors: –
(i) The length of time for which the parties had been married;
(ii) How long the parties had stayed together as husband and wife;
(iii) The length of time the parties had been staying apart;
(iv) The length of time for which the litigation had been pending;
(v) Whether there were any other proceedings between the parties;
Signature Not Verified
Signed by: PRACHI MISHRA
Signing time: 08-Apr-25
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NEUTRAL CITATION NO. 2025:MPHC-GWL:8025
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(vi)Whether there was any possibility of reconciliation;
(vii) Whether there were any children born out of the wedlock;
(viii)Whether the parties had freely, of their own accord, without
any coercion or pressure, arrived at a genuine settlement which
took care of alimony, if any, maintenance and custody of children,
etc.
28. In this Case, as observed above, the parties are both well-
educated and highly placed government officers. They have been
married for about 15 months. The marriage was a non-starter.
Admittedly, the parties lived together only for three days, after
which they have separated on account of irreconcilable
differences. The parties have lived apart for the entire period of
their marriage except three days. It is jointly stated by the parties
that efforts at reconciliation have failed. The parties are unwilling
to live together as husband and wife. Even after over 14 months of
separation, the parties still want to go ahead with the divorce. No
useful purpose would be served by making the parties wait, except
to prolong their agony. ”
(Emphasis supplied)
7. On due consideration of the contentions and perusal of the impugned
order as well as the documents available on record, including the decision
rendered by the Hon’ble Apex Court in the case of Amit Kumar (supra) , this
Court finds force with the contentions raised by the parties and considering the
fact that the parties have been living separately since 26.11.2023. All the efforts
of reconciliation had failed and they are unwilling to live together as husband andSignature Not Verified
Signed by: PRACHI MISHRA
Signing time: 08-Apr-25
10:35:45 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:80256 MP-1783-2025
wife and there is no dispute pending between the parties, this Court is of the
considered opinion that the application to waive the cooling off period of six
months ought to have been allowed.
8. Accordingly, the impugned order dated 18.03.2025 (Annexure P-1)
passed in Case No.85/2025 (HMA) by Additional Principal Judge, Family
Court, Gwalior deserves to be and is hereby set aside. The learned Family Court
is directed to waive off the cooling period of six months with a further direction
to consider and finally decide the divorce petition by mutual consent filed under
Section 13-B of the HM Act as expeditiously as possible, keeping in view the
judgment passed in the case of Amit Kumar (supra). The parties are directed to
remain present before the Family Court concerned on 21/04/2025.
9. Petition stands allowed and disposed of.
10. A copy of this order be sent to the Family Court concerned for
necessary information and compliance.
CC as per rules.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
Prachi
Signature Not Verified
Signed by: PRACHI MISHRA
Signing time: 08-Apr-25
10:35:45 AM
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