ORDER

This petition has been filed by the petitioner / husband Vinay Rajak under Article 227 of the Constitution of India.

2. It is submitted that petitioner/ husband and defendant/ wife are aggrieved by the order dated 3.8.2023 (Ex. P/3) passed in R.C.S.H.M. No. 731/2023 by the Family Court, Jabalpur. It is submitted that by the impugned order the concerned Court has rejected the application filed under Section 151 of C.P.C. in the above case to waive off six months of waiting period for divorce under Section 13(b) of the Hindu Marriage Act. The application was declined and the petition was directed to be listed on 08.01.2024.

3. It is submitted that the petitioner Vinay Rajak and respondent Neha Rajak were married on 1.3.2011 according to Hindu rites and rituals but due to their differences they are not interested in continuing their marriage and are living separately . They have filed a petition under Section 13(B) of the Hindu Marriage Act to dissolve the marriage on 7.7.2023. The case was filed in the month of August 2023 for statement of first motion as both the parties were living separately from 29.10.2019 and after filing of petition one month has elapsed but due to non recording of the statement of first motion, the petitioner filed an application under Section 151 of C.P.C. on 7.7.2023 which was rejected. The case is now listed on 8.1.2024, hence this petition with prayer that Court should have waived the period of six months as period of six months has already passed during lock down period. Both the parties had serious differences and quarrels and found it difficult to live together.

4. The Trial Court failed to take notice of the judgments of Hon'ble Apex Court in Amardeep Singh Vs. Harvind Kaur, AIR 2017 SC 4417 in which the Supreme Court had directed that where the Court dealing with the matter of divorce by consent is satisfied that case is made out to waive the statutory period, it can do so after considering that all the efforts of mediation and conciliation have failed and there is no likelihood of success in that direction and parties have genuinely settled their differences including alimony, child custody or any pending issues between the parties.

5. Family Court failed to see that waiting period of six months is only directory and not mandatory. The same view was expressed in M.P.No. 3455/2019 vide order dated 15.07.2019 passed by the Co-ordinate Bench of Gwalior High Court, therefore, prays for setting aside the order dated 3.8.2023 and allow the application under Section 13(B) for divorce and direct the Principal Judge of Family Court to draw decree as per the terms of the application.

6. Heard the petitioner Vinay Rajak and in the facts and circumstances of the case Smt. Neha Rajak, wife of the petitioner, need not be heard.

7. Learned counsel for the petitioner has requested to set aside the order dated 3.8.2023 and allow the application under Section 13(B) of the Hindu Marriage Act for divorce and direct the Family Court Judge to draw the decree for divorce but the judgment cited by the learned counsel in M.P.No. 3455/2019 (Smt. Mitali Singi Vs. Varun Singi) vide order dated 15.07.2019 had only set aside the order rejecting the application for waiving off the cooling period and directed the trial Court Judge to reinstate the application if the same is supported by affidavit and pass suitable order. Therefore, reliance on that order for granting decree of divorce on mutual consent from this Court cannot be allowed. In the judgment of Amit Kumar Vs. Suman Beniwal; 2021 SCC OnLine SC 1270, the Hon'ble Apex Court has granted the decree of divorce under Article 142 of the Constitution of India which is exclusive power of the Hon'ble Supreme Court. The learned Family Court in order dated 3.8.2023 has given some reasons, mainly on the basis that it is doubtful whether the parties who have two children - one aged 10 years and the other aged 8 years had time to contemplate matter in a peaceful manner and directed