IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE st ON THE 1 OF SEPTEMBER, 2023 MISC. PETITION No. 5147 of 2023 BETWEEN:-

PIYUSH @ ANKIT GUPTA S/O SHRI MURARI LAL, AGED- 30 YEARS, OCCUPATION: BUSINESS R/O NAL BALI GALI LOHIA BAZAR POLICE STATION HUJRAT KOTWALI LASHKAR DISTRICT GWALIOR (MADHYA PRADESH)

.....PETITIONER (BY SHRI N.K. GUPTA- ADVOCATE)

AND POOJA GUPTA W/O PIYUSH GUPTA D/O CHANDRAPRAKASH GUPTA, AGED-27 YEARS, OCCUPATION: DIRECTOR D S MIDDLE SCHOOL R/O MARGHAT PAHADI SCINDIA NAGAR NEAR HARISHANKARPURAM GWALIOR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI AKASH CHAURASIYA- ADVOCATE )

This petition coming on for admission this day, the court passed the following:

ORDER

The petitioner has preferred this petition under Article 226 of the Constitution of India seeking the following reliefs:

a.The impugned order dated 16.08.2023 contained in Annexure P/1 be set aside and the Ld. Court below be directed to waive off the cooling period in the interest of justice.

b. The Trial Court may further be directed to take the matter on any early date and dispose off the same within a stipulated time period.

Signature Not Verified Signed by: CHANDNI c. pass any other or further which this Hon'ble Court deems fit in the light of facts and circumstances of the present case.

At the outset learned counsel for the petitioner placed the order dated

7.10.2021 passed by the Coordinate Bench of this Court in the matter of Pankaj Rajput Vs. Kirti Rajput (M.P. No.3111/2021) and thereafter this Court has also passed the order dated 12.10.20222 in the matter of Smt. Vandana Goyal Vs. Prashant Goyal (M.P.No.4682 of 2022) and submits that the matter is covered by the order passed by this Court. He seeks parity viz a viz the said order.

Learned counsel for the respondent had not disputed the said fact.

A relevant discussion of the said order dated 12.10.2022 passed in M.P.

No.4682 of 2022 is as under:-

'12 In Amardeep Singh Vs. Harveen Kaur reported in AIR 2017 SC 4417, relied upon by the Family Court it had been held that :

“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 13B (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 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 32A 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;

Signature Not Verified Signed by: CHANDNI (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. Since I am 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.”

(13) The Family Court, thus, had misconstrued the judgment of this Court in Amardeep Singh Vs. Harveen Kaur (supra) and proceeded on the basis that Supreme Court has held that the conditions specified in 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, inclu