ORDER

This is a petition assailing the order dated 27-01-2023 by which the Family Court has declined to entertain the request made by the applicant and non-applicant jointly, to waive of cooling period, in terms of the law laid down by the Apex Court in the case of Amardeep Singh vs. Harveen Kaur, (2017) 8 SCC 746 .

2. It is contended by the learned counsel for applicant that a petition under Section 13-B(2) of the Hindu Marriage Act, 1955 was filed by the parties before the Court below, and a request was made to waive off the cooling period, inasmuch as there was no possibility of settlement, and the parties have consciously taken a decision to part ways and lead their lives independently. Accordingly, the said application ought to have been allowed.

3. Contention advanced by the learned counsel for the applicant has not been opposed by the learned counsel for the non-applicant 4. The apex Court in the case of Amardeep Singh (supra) in para 19 ruled thus :

"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 13-B(2), in addition to the statutory period of one year under Section 13-B(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."

5 . Therefore, in view of the aforesaid, if there are no chances of any settlement between the parties, it would be an exercise in futility, to unnecessary prolong the proceedings, and while taking this aspect into consideration, the apex Court has issued directions as regards waiver of cooling period.

6. Therefore, if the impugned order is examined in view of the law laid down by the Apex Court in Amardeep Singh (supra) , the same would reveal that there is complete failure on the part of the Court below, to appreciate the ratio laid down by the apex Court in Amardeep Singh (supra) .

7. Again, the apex Court in the case of Amit Kumar vs. Suman Beniwal, 2021 SCC OnLine SC 1270 has repeated the same view and in paras 22, 27 and 28 of the judgment 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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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