The court emphasized that the conditions for waiving the statutory waiting period of six months for divorce under Section 13B(2) of the Hindu Marriage Act are not mandatory, and the court can exercise its discretion based on the circumstances.

JUDGMENT

Subodh Abhyankar, J. - This petition has been filed by the petitioner under Article 227 of the Constitution of India against the order dated 07.12.2022, passed in Case No.HMA-5102/2022 by the Principal Judge, Family Court, Indore whereby the petitioner's application for waiver of cooling off of the period of one year and six months for entertaining the petition filed under section 13-B of the Hindu Marriage Act for divorce by mutual consent has been rejected.

2. Counsel for the petitioner has submitted that the marriage between the petitioner and the respondent solemnized on 26.06.2012, and subsequently due to matrimonial disputes, they are residing separately since 02.07.2021. They have decided to resolve their dispute by filing an application for divorce by mutual consent and thus on 22.09.2022, i.e. after a period of one year from the date they started living separately, the application has been filed under section 13-B of the Hindu Marriage Act. On 06.12.2022, the parties jointly filed an application for cooling off the minimum period of six months on the ground that they are residing separately since 02.07.2021. The aforesaid application has been rejected by the Principal Judge, Family Court, Indore relying upon the judgment passed by the Supreme Court in the case of Amardeep Singh Vs. Harveen Kaur reported in the year 2017 Vol.8 SCC 746 , and holding that it is mandatory for the parties to complete the period of six months after the divorce petition has been filed. Counsel for the petitioner has submitted that the aforesaid issue has already been decided by the court on 19.09.2022 in M.P. No.4135/2022 (Vaibhav Pancholi Vs. Priya) and also by the coordinate bench of this Court in case of (Kirti Mansare Vs. Ashish Mansare) in M.P. No.5924/2022 decided on 07.12.2022, wherein this court has also taken into account the decision rendered by the Supreme Court in case of Amardeep Singh (Supra) and has held that such application for waiver of cooling off period can be allowed.

3. Counsel for the respondent has submitted that the application ought to have been allowed as the parties have already decided to part their ways after reasonable deliberation and have filed the application for divorce by mutual consent on 02.07.2021 and as of now it has already been.

4. Heard.

5. On due consideration of submissions and perusal of the documents filed on record and also the order passed by this court in case of Vaibhav Pancholi (Supra), it is found that in that case this court has made the following observations:-

6. Counsel has also relied upon a subsequent decision rendered by the Supreme Court in the case of Amit Kumar v. Suman Beniwal reported in 2021 SCC OnLine SC 1270, wherein the Supreme Court has also interpreted the law laid down in the case of Amardeep Singh v. Harveen Kaur (supra); and in para 22, 27 and 28 of the said decision, the Supreme Court has held, as under: -

7. The Family Court, as well as the High Court, have misconstrued the judgment of this Court in Amardeep Singh v. 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 . xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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;

(