Shri Pravesh Kushwaha vs Smt. Roshni

NEUTRAL CITATION NO. 2026:MPHC-IND:29934
1 MP-6511-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE

BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
th
ON THE 26 OF OCTOBER, 2026
MISC. PETITION No. 6511 of 2026
CNR No.: MPHC020419742026
SHRI PRAVESH KUSHWAHA
Versus
SMT. ROSHNI
Appearance:
Shri Suryapal Singh Chouhan, Advocate for the petitioner.
Shri Sanidhya Nema, Advocate for the respondent.
ORDER
The present petition under Article 227 of the Constitution has been filed by
petitioner praying for the following reliefs:
1. It is, therefore, prayed that this Hon'ble Court may be
pleased to allow this petition by setting aside the impugned
order dated 28.09.2026 (P/5) and further please to allow the
application for waiver of statutory cooling-off period in the
interest of justice.
2. Any other relief which this Hon'ble Court deems fit in the
lights and circumstances of the case.
2. Learned counsel for the petitioner submitted that petitioner and the
respondent have jointly filed an application u/S 13B of the Hindu Marriage Act,
1955 for divorce by mutual consent. After first motion hearing of the case, the
petitioner and respondent jointly filed an application on 16.09.2026, seeking
waiver of the statutory cooling-off period of six months prescribed under Section
13-B(2) of the HMA Act. The learned trial Court by impugned order dated
28.09.2026, dismissed the joint application on the ground that the Court is yet to
Signature Not Verified
Signed by: PREETHA NAIR
Signing time: 26-10-2026
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be satisfied with regard to the factum that whether the petitioner and respondent

are legally wedded or not and also that the absence of material with regard to the
maintenance and custody of child. Therefore, being aggrieved by the impugned
order dated 28.09.2026(Annexure-P/5), the present petition has been filed by the
present petitioner.
3. Learned counsel has further relied upon the order dated 24/07/2025
passed in M.P. no. 3313/2025 as also the order dated 04/08/2026 passed by this
Court in M.P. No.4144/2026 in similar set of facts wherein cooling period was
waived off by allowing the petition and therefore, the present petition may also be
allowed in the light of the said order.
4. I have considered the submissions made by the parties and perused the
record.
5. Considering the submission that the issue involved in the present
petition is squarely covered by the order dated 04/08/2026 passed in M.P.
No.4144/2026, relevant paragraphs of the order are required to be reproduced for
convenience and reference, which are as under:
"3. It is pleaded by referring to section 13(B)(1) of the Hindu Marriage Act,
which reads as under :
13(B)(1). Divorce by mutual consent.—(1) Subject to the provisions of this Act a
petition for dissolution of marriage by a decree of divorce may be presented to the
district court by both the parties to a marriage together, whether such marriage was
solemnized before or after the commencement of the Marriage Laws (Amendment)
Act, 1976 (68 of 1976), on the ground that they have been living separately for a
period of one year or more, that they have not been able to live together and that they
have mutually agreed that the marriage should be dissolved.
4. It is also pointed out that in view of the judgments delivered by Hon'ble
Supreme Court in the case of Amit Kumar Vs. Suman Beniwal [ Civil Appeal
no. 7650 of 2021 decided on 11/12/2021] and Amardeep Singh Vs. Harveen
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Signing time: 26-10-2026
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Kaur reported in VI (2017) SLT, 921 as also, the judgment dated 17/12/2025

delivered by High Court of Delhi in the case of Shiksha Kumari Vs. Santosh
Kumar , now the law is very settled. For the sake of reference, relevant
observations made in para nos. 16, 17, 18, 22, 23 of Amardeep Singh's case
(supra), are reproduced as under :
16. The object of the provision is to enable the parties to dissolve a marriage by
consent if the marriage has irretrievably broken down and to enable them to
rehabilitate them as per available options. The amendment was inspired by the
thought that forcible perpetuation of status of matrimony between unwilling
partners did not serve any purpose. The object of the cooling off the period was
to safeguard against a hurried decision if there was otherwise possibility of
differences being reconciled. The object was not to perpetuate a purposeless
marriage or to prolong the agony of the parties when there was no chance of
reconciliation. Though every effort has to be made to save a marriage, if there
are no chances of reunion and there are chances of fresh rehabilitation, the
Court should not be powerless in enabling the parties to have a better option.
17. In determining the question whether provision is mandatory or directory,
language alone is not always decisive. The Court has to have the regard to the
context, the subject matter and the object of the provision. This principle, as
formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation” (9th
Edn., 2004), has been cited with approval in Kailash versus Nanhku and
ors.15as follows:
15 (2005) 4 SCC 480 “The study of numerous cases on this topic does not lead
to formulation of any universal rule except this that language alone most often
is not decisive, and regard must be had to the context, subject-matter and object
of the statutory provision in question, in determining whether the same is
mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No
universal rule can be laid down as to whether mandatory enactments shall be
considered directory only or obligatory with an implied nullification for
disobedience. It is the duty of courts of justice to try to get at the real intention
of the legislature by carefully attending to the whole scope of the statute to be
considered.’ “ ‘For ascertaining the real intention of the legislature’, points out
Subbarao, J. ‘the court may consider inter alia, the nature and design of the
statute, and the consequences which would follow from construing it the one
way or the other; the impact of other provisions whereby the necessity of
complying with the provisions in question is avoided; the circumstances,
namely, that the statute provides for a contingency of the non-compliance with
the provisions; the fact that the non-compliance with the provisions is or is not
visited by some penalty; the serious or the trivial consequences, that flow
therefrom; and above all, whether the object of the legislation will be defeated
or furthered’. If object of the enactment will be defeated by holding the same
directory, it will be construed as mandatory, whereas if by holding it mandatory
serious general inconvenience will be created to innocent persons without very
much furthering the object of enactment, the same will be construed as
directory.”
18. 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
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Signing time: 26-10-2026
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following :
i) the statutory period of six months specified in
ii) all efforts for mediation/conciliation including efforts in terms of
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.
22. Needless to say that in conducting such proceedings the Court can also use
the medium of video conferencing and also permit genuine representation of the
parties through close relations such as parents or siblings where the parties are
unable to appear in person for any just and valid reason as may satisfy the
Court, to advance the interest of justice.
23. The parties are now at liberty to move the concerned court for fresh
consideration in the light of this order.
5. It is also relevant to reproduce the observations made in para nos. 20 and

21 of Amit Kumar 's case (supra),
20. Since we are of the view that the period mentioned in Section 13 B(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.”
20. The factors mentioned in Amardeep Singh v. Harveen Kaur (supra), in
Paragraph 19 are illustrative and not exhaustive. These are factors which the
Court is obliged to take note of. If all the four conditions mentioned above are
fulfilled, the Court would necessarily have to exercise its discretion to waive the
statutory waiting period under Section 13B (2) of the Marriage Act.
21. 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.
6. In view of this, prima-facie, the observations made by learned Family
Court, while deciding the application for waiving off cooling period, is based
on the earlier law and without considering the subsequent decisions, which are
now available on that issue. Therefore, the impugned order is quashed by
remanding back the matter to learned Family Court to decide the application by
keeping in mind the above mentioned three judgments, as expeditiously as
possible preferably within 15 days from the date of receipt certified copy of this
order.
7. With the aforesaid direction, present petition is disposed of."
Signature Not Verified
Signed by: PREETHA NAIR
Signing time: 26-10-2026
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NEUTRAL CITATION NO. 2026:MPHC-IND:29934
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6. Since the issue involved in the present petition is also regarding waiver

of cooling period as parties are residing separately as in the matter relied upon by
the counsel for petitioner, the petition is required to be allowed.
7. Accordingly, the petition is disposed off with a direction to the learned
Family Court to decide the said application by keeping in mind the judgments
referred in similar order dated 04/08/2026 passed in M.P. No. 4144/2026 as
expeditiously, as possible, preferably within a period of 15 days from the date of
receipt of certified copy of this order. The learned trial Court can also use the
medium of video conferencing while conducting such proceedings as observed in
para 22 of the above judgment in case of Amardeep Singh (supra) since it is
stated that petitioner resides abroad.
8. With the aforesaid direction, petition stands disposed off.
(SANDEEP N. BHATT)
JUDGE

pn
Signature Not Verified
Signed by: PREETHA NAIR
Signing time: 26-10-2026
18:12:38