Allahabad High Court
Vaishnavi Mishra And Another vs State Of U.P. Thru. Its Prin. Secy. Home … on 9 April, 2026
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2026:AHC-LKO:24796 HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW MATTERS UNDER ARTICLE 227 No. - 1597 of 2026 Vaishnavi Mishra And Another .....Petitioner(s) Versus State Of U.P. Thru. Its Prin. Secy. Home Lko .....Respondent(s) Counsel for Petitioner(s) : Pradeep Kumar, Adarsh Tripathi Counsel for Respondent(s) : C.S.C. A.F.R. Court No. - 8 HON'BLE JASPREET SINGH, J.
1. Heard learned counsel for the petitioners.
2. By means of the instant petition, the petitioners assail the order dated 07.02.2026, passed by the Family Court in Case No.4208/2025, whereby an application for seeking exemption of the cooling period of six months, as provided under Section 13-B of the Hindu Marriage Act, 1955 (for short, ‘the Act of 1955’), has been rejected.
3. The submission of the learned counsel for the petitioners is that the Family Court has erred in rejecting the application without noticing the fact that all the conditions applicable and necessary for exempting the cooling of period relating to a petition under Section 13-B of the Act of 1955, were duly met.
4. The trial Court upon entertaining the petition under Section 13-B of the Act of 1955 fixed the next date as 27.05.2026 for filing of the second motion. By the very same order, the Family Court directed the parties to appear before the Mediation and Conciliation Centre on 20.01.2026.
5. It is urged that the first and foremost, the parties had already mediated while they were contesting the proceedings under Section 13 of the Act of 1955, but the mediation failed. The petitioners thereafter finding that there was no element of reconciliation and they were also living apart since more than one year, hence, they preferred a petition under Section 13-B of the Act of 1955 for dissolution of their marriage by mutual consent.
6. It is further submitted that once the mediation had failed, it was not open for the Family Court to have directed the parties to undergo the exercise of mediation again while their petition under Section 13-B of the Act of 1955 was pending, hence, prolonging the agony of the petitioners. The Court was required to consider the dictum and the conditions laid down by the Apex Court in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, however, the same was not noticed and the application preferred by the petitioners for seeking exemption of cooling period has been rejected by means of the impugned order dated 07.02.2026, which cannot be sustained and deserves to be set aside.
7. The Court has put a query to the learned counsel for the petitioners to address the Court on the under mentioned two grounds:-
(a) Regarding the availability of statutory remedy of appeal as provided under Section 19 of the Family Courts Act, 1984 (for short, ‘the Act of 1984’);
(b) What could be the ground upon which the application seeking exemption of cooling period can be made and whether requiring the parties to go for a mediation would stand exempted because, some mediation at some earlier point of time in respect of different set of proceedings had taken place.
8. Learned counsel for the petitioners, at the outset, submitted that since the order dated 07.02.2026 is an interlocutory order, hence, in terms of Section 19(1) of the Act of 1984, the appeal as contemplated would not lie and in such circumstances, a petition under Article 227 of the Constitution of India would be maintainable.
9. Examining the aforesaid submission, insofar as the powers of the Court to entertain and exercise its powers in terms of under Article 227 of the Constitution of India is concerned, the same are very wide, deep and pervasive. The Constitutional power cannot be abridged merely because an order is made appealable under a Statute. The difference between the right to entertain a petition is altogether different from the right to maintain a petition. [See : M/s. Godrej Sara Lee Ltd. v. The Excise and Taxation Officer and others, 2023 SCC OnLine SC 95].
10. It is now too well settled that even though the bar of alternate remedy is not an absolute bar but where the forum and remedy is created under a Statute then unless grave and accentuating circumstances are pointed out, which are within the well accepted perimeters till then the said bar operates nearly as an absolute bar notwithstanding that the powers under Articles 226 and 227 of the Constitution of India are purely equitable and discretionary.
11. The perimeters within which a petition under Article 227 of the Constitution of India is entertained while assailing an order of a Court can be summarily mentioned as under:-
(a) where the order impugned is an outcome of erroneous assumption of jurisdiction;
(b) where the Court refuses to exercise jurisdiction vested in it in law;
(c) The order is in violation of principles of natural justice;
(d) The order is an outcome of arbitrary exercise of authority or discretion by Court;
(e) The order is perverse or based on no material;
(f) The order is an outcome of a patent error of jurisdiction or procedure;
(g) If an order is allowed to stand it would occasion manifest injustice.
12. At this stage, it will be relevant to notice the provision of Section 19 of the Act of 1984 and for the sake of convenience, the aforesaid provision is being reproduced hereinafter:-
“Section 19. Appeal.?(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure,1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 1991)].
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.]
(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting two or more judges.”
13. The issue in context with the word ‘interlocutory’ used in Section 19(1) of the Act of 1984 came up for consideration before a Full Bench of this Court in Smt. Kiran Bala Srivastava v. Jai Prakash Srivastava, 2005 (23) LCD 1 and the Full Bench observed as under:-
“23. Before we consider whether orders under Section 24 granting pendent lite maintenance to the party to the matrimonial dispute, possesses characteristics and trappings of a “judgment”, we would like to refer to two Supreme Court cases, namely Amar Nath v. State of Haryana : AIR 1977 SC 2185 and Madhu Limaye v. State of Maharashtra : AIR 1978 SC 47. The controversy in Amar path’s case centred around the meaning of the expression “interlocutory order” appearing in sub-section (2) of Section 397 of the Code of Criminal Procedure. Relying on earlier view in Mohan Lal Magan Lal Thakkar v. State of Gujarat : AIR 1968 SC 733 the Apex Court said:
“The term “interlocutory order” is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster’s New World Dictionary “interlocutory” has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the right? and liabilities of the parties concerning a particular aspect. It seems to us that the term “interlocutory order” in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.”
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28. The learned counsel for the respondents has referred to the definition of “interlocutory orders” in Vol. 22 of the third edition of Halsbury’s Law of England and also to Central Bank of India v. Gokul Chand : AIR 1967 SC 799 and also to Amar Nath‘s case and Madhu Limaye’s case (supra), so as to say that order under Section 24 of the Act of 1955 are just steps in aid of the main proceedings and have no existence independent of the main proceedings, so will not fall within the definition of the judgment and will be only an interlocutory order. We are of the view that in view of the discussion made above order of pendent lite maintenance has all the characteristics and trappings of the judgment as it decides the valuable rights and liabilities of the parties to the proceedings. In so far as those rights and liabilities are concerned the order is final. The fact that the considerations that matter in granting or refusing pendent lite maintenance under Section 24, have no connection with issues in the main proceedings or the question that even after disposal of application under Section 24, the main petition remains alive for disposal, do not prevent the order under Section 24 from falling within the definition of the “judgment”. We are also of the view that the expression “interlocutory order” appearing in sub-section (1) of Section 19 of the Act 1984 qualify the word “order” only and does not qualify the word “judgment” appearing before the word “order”. In other words, if order of pendent lite maintenance is a “judgment” for all legal and practical purposes, it matters, little whether the same is interlocutory or final.”
14. Now, it will be relevant to examine Section 115 CPC as amended in the State of U.P., which reads as under:-
“115.(1) A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where no appeal lies against the order and where the subordinate court has-
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity.
(2) A revision application under sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court.
(3) The superior court shall not, under this section, vary or reverse any order made except where,-
(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the superior court.
Explanation -I. In this section,-
(I) the expression ?superior court? means-
(a) the district court, where the valuation of a case decided by a court subordinate to it does not exceed five lakh rupees;
(b) the High Court, where the order sought to be revised was passed in a case decided by the district court or where the value of the original suit or other proceedings in a case decided by a court subordinate to the district court exceed five lakh rupees;
(ii) the expression ?order? includes an order deciding an issue in any original suit or other proceedings.
Explanation -II. The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement.”
15. If the aforesaid provision is seen and more particularly the sub-Section (3) of Section 115 CPC, it would reveal that any order impugned, deciding an issue and if such an order is varied and reversed, it would finally dispose of the suit or other proceedings or the said order impugned if allowed to stand would cause failure of justice or irreparable injury to the party against whom it is passed, then a revision under Section 115 CPC can be maintained.
16. Now if the order impugned is seen, it would reveal that if such order is varied or reversed then by virtue of the ‘effect doctrine’ as explained by the Apex Court in Chintels India Ltd. v. Bhayana Builders Pvt. Ltd., (2021) 4 SCC 602, it would amount to waiving off the cooling period of six months and once the said period is waived, it would amount to allowing the petition under Section 13-B of the Act of 1955. Thus, effectively under normal circumstances, a revision would be maintainable against such an order. But by virtue of Section 19(1) of the Act of 1984 every order passed by the Family Court which is not interlocutory in nature, is appealable. Furthermore, the provisions of the Family Court Act has an overriding effect by virtue of Section 20 of the Act of 1984.
17. Thus, considering the meaning of the word ‘interlocutory’ as explained by the Full Bench of this Court in Kiran Bala Srivastava (supra) and also noticing the impact of an order waiving the cooling off period and its effect, it would leave no doubt that refusing to waive off the cooling off period cannot be treated as an interlocutory order. Thus, ordinarily against such an order, an appeal would be maintainable in terms of Section 19(1) of the Act of 1984, unless for special reasons, this Court finds it to be a case within the perimeter noticed above to entertain a petition under Article 227 of the Constitution of India. Thus, the first ground is decided accordingly.
18. Next, if the contention of the learned counsel for the petitioners in relation to the second ground is seen, as to whether directing the parties to go for mediation again, though they had mediated at an early point of time in some other proceedings and was unsuccessful, can it be a ground to waive the cooling period as the parties cannot be made to undergo another mediation.
19. In this regard, it will be appropriate to notice the provision of Section 13-B of the Act of 1955, which reads as under:-
“Section 13-B. 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.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]”
20. It will also be relevant to point out that certain ingredients are mentioned in Section 13-B of the Act of 1955 which permits the parties to file a petition for dissolution of their marriage with mutual consent. The said ingredients as mentioned in Section itself are (i) the parties have been staying separately for over a year; (ii) they have not been able to live together and (iii) they have agreed mutually to get their marriage dissolved.
21. The basic purpose of putting in a cooling period of six months before moving the second motion has been explained by the Apex Court in Inderjit Singh Grewal v. State of Punjab and another, (2011) 12 SCC 588 and is as under:-
“25. As per the statutory requirement, the purpose of the second motion after a period of six months is that the parties may make further efforts for reconciliation in order to save their marriage. There is also an obligation on the part of the court under Section 23(2) of the 1955 Act to make every endeavour to bring about a reconciliation between the parties. In Jagraj Singh v. Birpal Kaur [(2007) 2 SCC 564 : AIR 2007 SC 2083] this Court held that conjugal rights are not merely creature of statute but inherent in the very institution of marriage. Hence, the approach of a court of law in matrimonial matters should be ?much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire?. The court should not give up the effort of reconciliation merely on the ground that there is no chance for reconciliation or one party or the other says that there is no possibility of living together. Therefore, it is merely a misgiving that the courts are not concerned and obligated to save the sanctity of the institution of marriage.
26. In Sureshta Devi v. Om Prakash [(1991) 2 SCC 25 : 1991 SCC (Cri) 292 : AIR 1992 SC 1904] this Court held that mere filing of the petition for divorce by mutual consent does not authorise the court to make a decree for divorce. The interregnum waiting period from 6 to 18 months is obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The court must be satisfied about the bona fides and the consent of the parties for the reason that the court gets jurisdiction to make a decree for divorce only on mutual consent at the time of enquiry. The consent must continue to decree nisi and must be valid subsisting consent when the case is heard. Thus, withdrawal of consent can be unilateral prior to the second motion.
27. The Court further observed : (Sureshta Devi case [(1991) 2 SCC 25 : 1991 SCC (Cri) 292 : AIR 1992 SC 1904] , SCC p. 29, para 9)
?9. The ?living separately? for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression ?living separately?, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they ?have not been able to live together? seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.?
(emphasis added)
28. For grant of divorce in such a case, the Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. (Vide Hitesh Bhatnagar v. Deepa Bhatnagar [(2011) 5 SCC 234 : (2011) 2 SCC (Civ) 701 : AIR 2011 SC 1637] .)”
Thus, it would reveal that the basic purpose of six months is to give a chance to the parties to give another thought to their decision to dissolve the marriage.
22. At this stage, it will also be relevant to note the aim, object and reason for enacting the Family Court Act, 1984 and it inter alia provided:-
“STATEMENT OF OBJECTS AND REASONS
Several associations of women, other organisations and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the courts in adopting this conciliatory procedure and the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes.
2. The Bill inter alia seeks to –
(a) provide for establishment of Family Courts by the State Governments;
(b) make it obligatory on the State Governments to set up a Family Court in every city or town with a population exceeding one million;
(c) enable the State Governments to set up, such courts, in areas other than those specified in (b) above:
(d) exclusively provide within the jurisdiction of the Family Courts the matters relating to-
(i) matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of marriage or as to the matrimonial status of any person;
(ii) the property of the spouses or of either of them;
(iii) declaration as to the legitimacy of any person;
(iv) guardianship of a person or the custody of any minor,
(v) maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure,
(e) make it obligatory on the part of the Family Court to endeavour, in the first instant to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will be informal and rigid rules of procedure shall not apply,
(f) provide for the association of social welfare agencies, counsellors, etc., during conciliation stage and also to secure the service of medical and welfare experts;
(g) provide that the parties to a dispute before a Family Court shall not be entitled, as of right, to be represented by legal practitioner. However, the court may, in the interest of justice, seek assistance of a legal expert as amicus curiae;
(h) simplify the rules of evidence and procedure so as to enable a Family Court to deal effectively with a dispute;
(i) provide for only one right of appeal which shall lie to the High Court.”
23. In this context, it will also be relevant to notice Section 9 of the Act of 1984, which reads as under:-
“9. Duty of Family Court to make efforts for settlement.-(1) In every suit or proceeding endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) if, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings.”
24. The aforesaid provision is in consonance with the aim and object of the Act of 1984 as noticed above and has been couched in a mandatory form. Such powers can be exercised at any stage and such powers are also in addition and not in derogation of the other powers of the Court, under the Act of 1984.
25. Now, at this stage, it will be relevant to note the observations made by the Apex Court in Amardeep Singh (supra), which is being reproduced hereinafter:-
“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 3CPC/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.
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.?
26. The Apex Court in Amit Kumar v. Suman Beniwal, (2023) 17 SCC 648 had the occasion to consider the provision of Section 13-B of the Act of 1955 and the object of the cooling off period. It also considered the decision of Amardeep Singh (supra) and clarified the law as under:-
“16. The legislature has, in its wisdom, enacted Section 13-B(2) of the Hindu Marriage Act to provide for a cooling period of six months from the date of filing of the divorce petition under Section 13-B(1), in case the parties should change their mind and resolve their differences. After six months if the parties still wish to go ahead with the divorce, and make a motion, the court has to grant a decree of divorce declaring the marriage dissolved with effect from the date of the decree, after making such enquiries as it considers fit.
17. The object of Section 13-B(2) read with Section 14 is to save the institution of marriage, by preventing hasty dissolution of marriage. It is often said that ?time is the best healer?. With passage of time, tempers cool down and anger dissipates. The waiting period gives the spouses time to forgive and forget. If the spouses have children, they may, after some time, think of the consequences of divorce on their children, and reconsider their decision to separate. Even otherwise, the cooling period gives the couple time to ponder and reflect and take a considered decision as to whether they should really put an end to the marriage for all time to come.
18. Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filing of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage. Thus, if the marriage has broken down irretrievably, the spouses have been living apart for a long time, but not been able to reconcile their differences and have mutually decided to part, it is better to end the marriage, to enable both the spouses to move on with life.
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20. The factors mentioned in Amardeep Singh v. Harveen Kaur [Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 : (2017) 4 SCC (Civ) 804 : (2017) 3 SCC (Cri) 505] , in para 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 13-B(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 [Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 : (2017) 4 SCC (Civ) 804 : (2017) 3 SCC (Cri) 505] and proceeded on the basis that this Court has held that the conditions specified in para 19 of the said judgment, quoted hereinabove, are mandatory and that the statutory waiting period of six months under Section 13-B(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’s before making the motion for decree of divorce.
22. It is well settled that a judgment is a precedent for the issue of law that is raised and decided. A judgment is not to be read in the manner of a statute and construed with pedantic rigidity. In Amardeep Singh v. Harveen Kaur [Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 : (2017) 4 SCC (Civ) 804 : (2017) 3 SCC (Cri) 505] , this Court held that the statutory waiting period of at least six months mentioned in Section 13-B(2) of the Hindu Marriage Act was not mandatory but directory and that it would be open to the Court to exercise its discretion to waive the requirement of Section 13-B(2), having regard to the facts and circumstances of the case, if there was no possibility of reconciliation between the spouses, and the waiting period would serve no purpose except to prolong their agony.”
27. The pith and substance of the aforesaid discussions, the legal provisions involved and how a Court must deal with an application for seeking waiver of the cooling of period of six months are summarized as under:-
(A) It first must be borne in mind that under the Hindu Marriage Act there is a distinct legal threshold which gives eligibility to file a petition for dissolution of marriage by mutual consent. This is quite different from the grounds and justification required to skip the waiving/cooling off period.
(B) Now, in order to seek waiver of this six months of cooling off period, the grounds as set out and specially by the Apex Court in Amardeep (supra) would indicate that though some grounds are common to the ones which must exist before a petition under Section 13-B of the Act of 1955 can be filed yet the said grounds for cooling off the period of six months require more stringent scrutiny.
(C) At the stage, when the Court is confronted with an application seeking waiver of the cooling off period then the Court should ascertain that-
(i) whether all matters between to the parties, such as custody of children, distribution of properties, and alimony etc. are fully settled and done between the parties;
(ii) what has been the period of separation between the parties, beyond one year prior to the date of institution of the petition under Section 13-B of the Act of 1955;
(iii) the Court must be satisfied that in the circumstances of the case before it, the waiting period will only prolong the agony of the parties;
(iv) The Court must also keep in mind that as per the legislative intent, the six months period as provided in Section 13-B is the Rule and waiving the six months period is the exception. Thus, in order to seek waiver of the cooling of period, it becomes necessary to plead the grounds of seeking exemption with sufficient particularlity so that the Court dealing with the said application has enough material before it to objectively consider the application seeking waiver of the cooling of period;
(v) It also must be seen that what is the urgency or the hardship which compels the parties to seek waiver of the cooling off period of six months. Since, this urgency or hardship clause will be the decisive factor, hence, it must be clearly pleaded with sufficient particularity to make out a clear case and the Court should be able to discern it and not give into an artificial urgency created by mere clever drafting. Though, no straitjacket formula nor all circumstances can be illustrated but nevertheless the following grounds and its like can be a useful guide for the Court:-
(a) a party may have a firm job opportunity aboard or visa aboard may be expiring;
(b) advanced age or failing health of any party;
(c) any circumstances which may restrict the movement of a party including any service condition relatable to any member of the armed forces or in cases of sportsperson who have to travel for their sports training or competition, etc.;
(d) any other similar cause which may be time sensitive;
(e) long period of acrimonious litigation between the parties which has already shattered the very bedrock of the institution of marriage and there can be no reconciliation;
(f) anyone parent/party, who has the custody of the child/children has to travel for education or like purpose for the betterment and welfare of the child.
28. Now, coming to the facts of the instant case, it would reveal that the petitioners have not indicated what are those accentuating circumstances which falls within the scope of grounds seeking exemption of the cooling period as noticed above except the fact that when the parties were contesting the proceedings under Section 13 of the Act of 1955, they were subjected to mediation which failed.
29.Failure of mediation at one stage does not necessarily imply that subsequent mediation cannot take place and even if it does, then it has to fail thus, on this assumption a subsequent mediation cannot be ordered by the Court, cannot be legally valid submissions.
30. In the instant case, the record would reveal that after the entertainment of the first motion by the Family Court, by means of the order dated 26.11.2025, it had directed the parties to appear before the mediation on 20.01.2026. It is also not disputed that the parties abided by the said order and they also participated in the mediation, however, the same was not successful and the mediator on 03.04.2026 had sent its report indicating the failure of mediation.
31. In this view of the matter, the ground upon which the petitioners seek to assail the order dated 07.02.2026, already stood complied with and, therefore, if that grounds is subtracted from the entire application there is no other ground upon which the petitioners seeks the exemption of cooling of period. 32. For the aforesaid reasons, this Court does not find that it is a fit case for this Court to entertain a petition under Article 227 of the Constitution of India as it does not fall within the perimeter set by the Court and as explained hereinabove. Accordingly, for the aforesaid reason, the petition is dismissed. There shall be no order as to costs.
(Jaspreet Singh,J.)
April 9, 2026
Rakesh/-