The conditions for waiving the cooling-off period under Section 13(B) of the Hindu Marriage Act are not mandatory, allowing the court discretion based on the parties' circumstances.

ORDER

The present petition is filed under Article 227 of the Constitution of India challenging the order dated 10/03/2025 passed by Additional Principal Judge, Family Court, Indore in HMA No.432/2025 of Hindu Marriage Act whereby the application filed by the petitioner for waiving off cooling period of six months has been rejected.

2. It is argued that both the parties have filed petition for divorce on mutual consent under Section 13(B) of Hindu Marriage Act, 1955 and they also moved their application for waiver of period of cooling. Learned trial court has rejected the application relying on the decision rendered by the Supreme Court in the matter of Amardeep Singh Vs. harveen Kaur, 2017 (8) SCC 746. It is submitted that in the application they had clearly stated that they are living separately for 3 years and there is not marital relationship during this period. Further, there is no possibility of restitution of conjugal right between them.

3. 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 MP No.4135/2022 of the said decision, the Supreme Court has held, as under: -

“22. 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.

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2 7 . 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;

(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)

4. Thus, it is submitted by the learned counsel for the parties that in the pressing circumstances, in which the parties have found themselves, the application for waiving the cooling off period of six months has been filed and as has already been held by the Supreme Court that even the conditions as enumerated in the case of Amardeep Singh v. Harveen Kaur (supra) are not mandatory and the Court can also exercise its discretion ta