Madhya Pradesh High Court
Smt Manisha Sharma vs Nishant Dikshit on 21 January, 2025
Author: Anand Pathak
Bench: Anand Pathak, Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:1227
1 MP-113-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 21 st OF JANUARY, 2025
MISC. PETITION No. 113 of 2025
SMT MANISHA SHARMA
Versus
NISHANT DIKSHIT
Appearance:
Shri J.P. Kushwaha-Advocate for petitioner/wife.
Shri Suneel Kumar Sharma-Advocate for respondent/husband.
ORDER
Per: Justice Anand Pathak Learned counsel for the respondent submits that he has no objection if the petition filed by the petitioner is allowed.
2. With the consent of both the parties, the matter is heard finally.
3. The petitioner has filed this miscellaneous petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 20/12/2024 passed in Case No.1283A/2024 HMA by Principal Judge, Family Court, Gwalior whereby a joint application for waiving off six months' cooling period for seeking decree for mutual divorce has been dismissed.
4. Brief facts of the case are that the marriage of the petitioner has been solemnized with respondent on 25/01/2019. The marital ties between both the parties have irretrievably broken and upon the consensus arrived at between both the parties, they have reached on amicable settlement in the form of mutual separation. They agreed for mutual dissolution of their marriage. They are living Signature Not Verified Signed by: SUNEEL DUBEY Signing time: 1/22/2025 6:49:21 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:1227 2 MP-113-2025 separately since 10/05/2021 and are not fulfilling any marital obligation between each other and there is not the slightest possibility of reconciliation.
5. Learned counsel for both the parties have filed a joint petition under Section 13-B of Hindu Marriage Act, 1955 (for short "HM Act") for mutual divorce on 24/09/2024. During the pendency of the case, they have filed an application for waiving off the cooling period of six months contending therein that the statutory period of Six months is not mandatory but discretionary in nature and it may be waived off in the interest of justice, but same has been dismissed by the trial Court vide order dated 20/12/2024. Being aggrieved by the same, the petitioner has preferred the present petition.
6. Learned counsel for both the parties submit that learned family court has fixed the date for final statements of the parties by following the concept of the cooling period but both the parties have already made up their mind for separation in the light of the judgment passed by Hon'ble Apex Court in the case of Amardeep Singh Vs. Harveen Kaur reported in (2017) 8 SCC 746 but their application has been dismissed. The impugned order passed by the trial Court is against the law and fact. Both the parties appeared before the court and they have mutually decided their ways and there are no chance of reunion. Hence, it is prayed that the impugned order be set-aside.
7. Hon'ble Apex Court in the case of Amardeep Singh (Supra) 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 :Signature Not Verified Signed by: SUNEEL DUBEY Signing time: 1/22/2025 6:49:21 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1227 3 MP-113-2025
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.
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 concerned Court".
8. Upon hearing learned counsel for the parties and perusal of the record, it appears that the marriage between both the parties was solemnized on 25/01/2019 and they haven't fulfilled any marital obligation between each other since 10/05/2021. They are living separately and there is no possibility of reconciliation between them because, both of the parties have mutually decided that they will not live together and they are agreed for the dissolution of their marriage by mutual consent. The period mentioned under Section 13-B(2) of the Hindu Marriage Act is not mandatory and it is only discretionary in nature and it can be waived off in the interest of justice. But the learned trial court has committed an error in Signature Not Verified Signed by: SUNEEL DUBEY Signing time: 1/22/2025 6:49:21 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:1227 4 MP-113-2025 rejecting the joint application filed by both the parties. Therefore, the impugned order passed by the trial court cannot be sustained and it deserves to be set-aside.
9. In view of the above, this Miscellaneous Petition stands allowed. The impugned order dated 20/12/2024 passed in Case No.1283A/2024 HMA by Principal Judge, Family Court, Gwalior is hereby set aside. Since the period mentioned in Section 13B(2) of HM Act is not mandatory but discretionary, the concerned Family Court is hereby directed to decide the joint application under Section 13B (2) of HM Act within a period of 15 days from the date of receipt of the certified copy of this order.
10. With the aforesaid directions, this petition is disposed of.
11. Certified copy, as per Rules.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
(Dubey)
Signature Not Verified
Signed by: SUNEEL DUBEY
Signing time: 1/22/2025
6:49:21 PM