ORDER :

Gurpal Singh Ahluwalia, J.

1. Ms. Yashodhara Puniya, Advocate for Petitioner.

2. This petition under Article 227 of the Constitution of India has been filed against the order dated 20/1/2021 passed by Family Court (Link) Gwalior in case No. 125 A/2020 (HMA), by which the application filed by the petitioner under Section 13-B (2) of the Hindu Marriage Act has been rejected.

3. It is submitted by the counsel for the petitioner that the petitioner and the respondent were married to each other on 21/4/2007 and because of their mutual differences, they are residing separately for the last three years and accordingly on 11/8/2020 they filed an application under Section 13-B of the Hindu Marriage Act for grant of divorce by mutual consent. On 18/12/2020 affidavits under Order 18, Rule 4, CPC were filed. On the same day, a prayer was made by the parties that their application may be decided finally, however, the trial court by ignoring their prayer, has adjourned the matter for 30/6/2021 for recording of their second statements. It is submitted by the counsel for the petitioner that the provision of Section 13-B (2) of the Hindu Marriage Act is not mandatory, but it is directory in nature and, therefore, the court below should not have adjourned the matter for six months and should have granted the decree of mutual consent. It is further submitted that since the application for grant of mutual consent was filed on 11/8/2020, therefore also, six months have already passed.

3A. Heard learned counsel for the petitioner.

4. The Supreme Court in the case of Amardeep Singh v. Harveen Kaur, reported in (2017) 8 SCC 746 : (AIR 2017 SC 4417) 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 13-B(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 32-A 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.

20. Since we are of the view that the period mentioned in Section 13B(2) 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 are chances of alternative rehabilitation."

5. If the application filed by the petitioner under Section 151 of CPC (should have been under Section 13-B (2) of Hindu Marriage Act) is considered, then it is clear that the parties have a 12 years old daughter. Further, there is nothing in the application that there are chances of alternative rehabilitation. The basic purpose of provisions of Section 13-B (2) of the Hindu Marriage Act is to give an opportunity to the contesting parties to think over their decision to get separated. Although the provisions of Section 13-B (2) of the Hindu Marriage Act is not mandatory but is directory in nature, however, the cooling period should not be waived unless and until there is a strong possibility of rehabilitation of the parties. Every attempt should be made to save the married life. Further, there is nothing in the appli