Shailja Shrivastava vs Shri Amit Shrivastava

This petition under Article 227 of the Constitution of India has been filed against the order dated 30/10/2019 passed by Principal Judge, Link Court, Gwalior in case No.315A/19 HMA, by which the application filed by the petitioner for waiving of cooling period has been rejected.

It is submitted that an application under Section 13-B of the Hindu Marriage Act has been filed for grant of divorce on mutual ground. Earlier the petitioner had filed an application for grant of divorce under Section 13 of the Hindu Marriage Act, which was withdrawn on 17/9/2019 and now an application for grant of divorce by mutual consent has been filed. The statements of the witnesses have been recorded. An application was filed for waiving of cooling period, however, the court below has rejected the said application on the ground that one case under Section 12 of the Protection of Women from Domestic Violence Act is still pending. It is submitted that the petitioner has now withdrawn the said case also, therefore, now there is no impediment before the trial court to waive off the cooling period.

Heard learned counsel for the petitioner.

The petitioner has provided a certified copy of the order dated 13/11/2019 passed by JMFC, Gwalior in case No.92/2018, from which it appears that the petitioner had filed an application for withdrawal of the said proceedings on the ground that since the Family Court has rejected the application for waiving off the cooling period on the ground that one case is still pending, therefore, she wants to withdraw the same. Although the application filed by the petitioner has been allowed and the complaint filed under the Protection of Women from Domestic Violence, Act has been permitted to be withdrawn, but from the reasons mentioned in the application, it is clear that the petitioner has not withdrawn the said proceedings out of her own volition, but she has assigned the reason that since the Family Court has rejected the application for waiver of cooling period, therefore, she is withdrawing the proceedings.

So far as the waiver of cooling period is concerned, the said provision has been made to give an opportunity to the litigating parties to reconsider their decision, so that they may not feel sorry for their decision of taking divorce in a haste. The reason which was assigned by the petitioner for withdrawal of complaint under the Protection of Women from Domestic Violence Act, clearly indicates that the petitioner had not withdrawn the said proceedings out of her own volition and there appears to be some doubt that whether the parties had arrived at genuine settlement or not. Under these circumstances, this Court is of the considered opinion that no case is made out warranting waiver of cooling period.

Accordingly, the petition fails and is hereby dismissed.