# Layak Singh v. Smt. Ekta Kumari

- **Citation:** (2024) 4 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-21
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/layak-singh-v-smt-ekta-kumari-51856
- **Pages:** 9

## Headnote

(A) Family Law - Waiver of Cooling Period
in Divorce by Mutual Consent - Hindu
Marriage Act, 1955 - Section 13-B (2) -
Divorce by mutual consent - Irretrievable
breakdown of marriage - cooling period -
mutual consent divorce - discretionary
powers - Statutory period of six months
under Section 13-B (2) is not mandatory
but directory, and courts can exercise
discretion to waive this period if there's no
possibility
of
reconciliation
and
the
waiting period would only prolong the
parties' agony.(Para -15,18,22)

Petitioner (Layak Singh) and respondent (Ekta
Kumari) married on 29.06.2020 - separated
shortly after on 28.10.2020 - Multiple efforts for
reconciliation failed - Both parties mutually
agreed to divorce - petitioner agreeing to pay
₹6,00,000/- to respondent - joint petition for
divorce was filed under Section 13-B on
10.11.2023 - Application to waive cooling period
was rejected by Family Court - Family Court
held - only Supreme Court can waive the cooling
812 INDIAN LAW REPORTS ALLAHABAD SERIES
period under Article 142leading to the present
petition.(Para 2, 3, 20)

HELD: - Order of Family Court rejecting the
waiver of the cooling period quashed. Family
Court was directed to decide the matter within
two months ensuring that no unnecessary
delays are caused. (Para 25, 26,27)

Petition allowed. (E-7)

List of Cases cited:

## Text

4 All. Layak Singh Vs. Smt. Ekta Kumari
811
this Court finds that the Appellate Court
has erred in law while rejecting the stay
application of the appellant/petitioner, by
which
it
was
prayed
by
the
appellant/petitioner to stay the fine of
Rs.4,00,000/- imposed by the trial court
while convicting him under Section 138 of
the Negotiable Instruments Act, 1881 till
the disposal of the appeal preferred by the
appellant/petitioner before the Appellate
Court.
Thus,
this
Court
deems
it
appropriate to dispose of this petition with
modification of the impugned order dated
29.02.2024 to the extent that the petitioner
is directed to deposit 20% of the fine
imposed upon him by the trial court within
sixty days' from the date of delivery of this
judgment by this Court and the bail already
granted by the Appellate Court shall
continue till the disposal of the appeal
pending before the Appellate Court i.e.
Sessions Judge Faizabad (now Ayodhya)
bearing Criminal Appeal No.12 of 2024
((Mangla Prasad Singh Vs. Shanti Roller
Mills Ltd.).

25. It is further directed that the
petitioner will be on bail as granted by the
Appellate
Court
vide
order
dated
29.02.2024 with same terms and conditions
as imposed by the Appellate Court while
granting him bail.

26. It is hereby made clear that if 20%
of the fine imposed is not deposited by the
petitioner within the period of sixty days
from the date of pronouncement of this
judgment by this Court, then the bail
already granted by the Appellate Court
concerned
shall
stand
automatically
cancelled.

27. With the above observations/
directions, the present petition is finally
disposed of.

28. Let a copy of this judgment be
communicated to the Appellate Court
concerned for its immediate compliance,
forthwith by the office of the Senior
Registrar of this Court.
----------
(2024) 4 ILRA 811
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters U/A 227 No. 1607 of 2024 (Civil)

Layak Singh ...Petitioner
Versus
Smt. Ekta Kumari ...Respondent

Counsel for the Petitioner:
Sri Puneet Bhadauria

Counsel for the Respondent:

(A) Family Law - Waiver of Cooling Period
in Divorce by Mutual Consent - Hindu
Marriage Act, 1955 - Section 13-B (2) -
Divorce by mutual consent - Irretrievable
breakdown of marriage - cooling period -
mutual consent divorce - discretionary
powers - Statutory period of six months
under Section 13-B (2) is not mandatory
but directory, and courts can exercise
discretion to waive this period if there's no
possibility
of
reconciliation
and
the
waiting period would only prolong the
parties' agony.(Para -15,18,22)

Petitioner (Layak Singh) and respondent (Ekta
Kumari) married on 29.06.2020 - separated
shortly after on 28.10.2020 - Multiple efforts for
reconciliation failed - Both parties mutually
agreed to divorce - petitioner agreeing to pay
₹6,00,000/- to respondent - joint petition for
divorce was filed under Section 13-B on
10.11.2023 - Application to waive cooling period
was rejected by Family Court - Family Court
held - only Supreme Court can waive the cooling
812 INDIAN LAW REPORTS ALLAHABAD SERIES
period under Article 142leading to the present
petition.(Para 2, 3, 20)

HELD: - Order of Family Court rejecting the
waiver of the cooling period quashed. Family
Court was directed to decide the matter within
two months ensuring that no unnecessary
delays are caused. (Para 25, 26,27)

Petition allowed. (E-7)

List of Cases cited:

1. Amardeep Singh Vs Harveen Kaur, (2017) 8
SCC 466

2. Amit Kumar Vs Suman Beniwal, 2021 SCC
Online SC 1270

3. Anil Kumar Jain Vs Maya Jain, (2009) 10 SCC
415

4. Smt. Pratibha Vs Gaurav, Matter Under Article
227 No. 1886 of 2020

5. Hari Vishnu Kamath Vs Syed Ahmad Ishaque
& ors., 1954 (2) SCC 881

6. ICICI Ltd. Vs Grapco Industries Ltd. & ors.,
(1999) 4 SCC 710

7. Sureshta Devi Vs Om Prakash, (1991) 2 SCC
25

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard learned counsel for the
petitioner and perused the record.

2. This petition has been filed
challenging the order dated 10.01.2014
passed by Principal Judge, Family Court,
Agra rejecting the application filed by the
petitioner as well as opposite party under
Section 13-B(2) of the Hindu Marriage Act
for waiving off the 'cooling period' in
H.M.A. Case No. 2978 of 2023 (Layak
Singh v. Smt. Ekta Kumari, under Section
13-B of the Hindu Marriage Act).

3. Brief facts of the case are that the
petitioner Layak Singh was married to the
opposite party Smt. Ekta Kumari on
29.06.2020 at Sundarpada Thana Nai Ki
Mandi, District Agra. Soon after the
marriage, both the parties found that it was
not possible for them to live together and
opposite party Ekta Kumari left the
matrimonial home on 28.10.2020. Despite
best efforts made by the family members
and other members of the society, they
failed to resolve their dispute and were
adamant to take divorce. Both the parties
lodged cases, against each other. The
petitioner as well as the opposite party
came to an agreement that the petitioner
would pay a sum of ₹ 6,00,000/- to the
opposite party and they would divorce each
other. An application under Section 13-B of
the Hindu Marriage Act was filed by the
petitioner as well as opposite party on
10.11.2023 for divorce on the basis of
compromise entered into between the
parties. On 10.11.2023, the Principal Judge,
Family Court, Agra, fixed 13.03.2024 for
mediation and 13.05.2024 for second
motion. On 09.01.2024, a joint application
was moved by the petitioner as well as
opposite party for early disposal of divorce
petition on the ground that the petitioner
had applied for service in various states
outside the State of Uttar Pradesh but
because of pendency of the case, the
petitioner was unable to join the service. It
was also mentioned that the opposite party
also wants to get the petition decided
expeditiously
so
that
she
may
live
separately. The application so filed by the
petitioner was rejected by the Principal
Judge, Family Court, Agra by its order
dated
10.01.2024,
hence
the
present
petition.

4. Contention of the learned counsel
for the petitioner is that the petitioner and
4 All. Layak Singh Vs. Smt. Ekta Kumari
813
opposite party are residing separately for
more than three years and all the efforts of
conciliation between them had already
failed. Both the parties had decided to part
ways and had agreed for dissolving their
marriage. It is further contended by
learned counsel for the petitioner that
Principal Judge, Family Court, Agra had
rejected the application on the ground
that cooling period can be waived only by
Supreme Court in exercise of power
under Article 142 of Constitution of
India. The view taken by the Principal
Judge Family Court, Agra was erroneous.
It is next contended by learned counsel
for the petitioner that as per the
agreement, the petitioner had paid a sum
of ₹ 6,00,000/- by means of a bank draft
to the opposite party and both the parties
had agreed and are still agree for divorce
by mutual consent. In this regard, learned
counsel for the petitioner has relied upon
the judgment of Supreme Court in case of
Amardeep Singh v. Harveen Kaur
reported in (2017) 8 SCC 466.

5 . Before considering the submissions
made by the learned counsel for the
petitioner, it would be appropriate to
consider the relevant statutory provision.

6. Section 13-B of Hindu Marriage
Act, 1955 is as follows:

"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 solemnised 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 solemnised 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."

7. From the perusal of the order
impugned, it reflects that the Principal
Judge, Family Court, Agra after noting the
facts of the case, considered various
judgments of Supreme Court including the
judgment of Amardeep Singh v. Harveen
Kaur (Supra) and judgment in case of
Amit Kumar v. Suman Beniwal reported
in 2021 SCC Online SC 1270, the
Principal Judge, Family Court has held as
under:

"In the facts and circumstances of
this Case, it is not appropriate for this
Court to waive the statutory period of six
months as provided u/S, 13-B(2) of the
Hindu
Marriage
Act,
1955
before
completing
the
mediation/conciliation
efforts, grounds mentioned in the instant
application and as per law provided by the
Hon'ble Supreme Court in Anil Kumar Jain
Vs. Maya Jain (Supra)."

8. The Principal Judge, Family Court,
Agra relied upon the judgment in case of
Anil Kumar Jain v. Maya Jain reported in
814 INDIAN LAW REPORTS ALLAHABAD SERIES
(2009) 10 SCC 415 wherein following has
been held:

"29. In the ultimate analysis the
aforesaid
discussion
throws
up
two
propositions. The first proposition is that
although
irretrievable
break-down
of
marriage is not one of the grounds
indicated whether under Sections 13 or 13B of the Hindu Marriage Act, 1955, for
grant of divorce, the said doctrine can be
applied to a proceeding under either of the
said two provisions only where the
proceedings are before the Supreme Court.
In exercise of its extraordinary powers
under Article 142 of the Constitution the
Supreme Court can grant relief to the
parties without even waiting for the
statutory period of six months stipulated in
Section 13-B of the aforesaid Act. This
doctrine of irretrievable break-down of
marriage is not available even to the High
Courts which do not have powers similar to
those exercised by the Supreme Court
under Article 142 of the Constitution.
Neither the civil courts nor even the High
Courts can, therefore, pass orders before
the periods prescribed under the relevant
provisions of the Act or on grounds not
provided for in Section 13 and 13-B of the
Hindu Marriage Act, 1955.

30. The second proposition is that
although the Supreme Court can, in
exercise of its extraordinary powers under
Article 142 of the Constitution, convert a
proceeding under Section 13 of the Hindu
Marriage Act, 1955, into one under Section
13-B and pass a decree for mutual divorce,
without waiting for the statutory period of
six months, none of the other Courts can
exercise such powers. The other Courts are
not competent to pass a decree for mutual
divorce if one of the consenting parties
withdraws his/her consent before the
decree is passed. Under the existing laws,
the consent given by the parties at the time
of filing of the joint petition for divorce by
mutual consent has to subsist till the second
stage when the petition comes up for orders
and a decree for divorce is finally passed
and it is only the Supreme Court, which, in
exercise
of
its
extraordinary
powers
under Article 142 of the Constitution, can
pass orders to do complete justice to the
parties."

9. The provisions of the Hindu
Marriage Act demonstrate an inherent
respect for the institution of marriage,
which contemplates the sacramental union
of a man and a woman for life. However,
there may be circumstances in which it may
not reasonably be possible for the parties to
the marriage to live together as husband
and wife.

10. The Hindu Marriage Act,
therefore has provisions for annulment of
marriage in specified circumstances, which
apply to marriages which are not valid in
the eye of law and provisions of judicial
separation and dissolution of marriage by
decree of divorce on grounds provided in
Section 13(1) of the said Act, which apply
to cases where it is not reasonably possible
for the parties to a marriage to live together
as husband and wife.

11. Section 13B incorporated in the
Hindu Marriage Act with effect from
27.5.1976, which provides for divorce by
mutual consent, is not intended to weaken
the institution of marriage. Section 13B
puts an end to divorce proceedings between
spouses,
often
undefended,
but
time
consuming by reason of lengthy process of
procedures. Section 13B also enables the
parties to a marriage to avoid and/or
shorten unnecessary bitter litigation, where
4 All. Layak Singh Vs. Smt. Ekta Kumari
815
the marriage may have irretrievably broken
down and both the spouses may have
mutually decided to part. But for Section
13B, the defendant spouse would often be
constrained to defend the litigation, not to
save the marriage, but only to refute
prejudicial allegations, which if accepted
by Court, might adversely affect the
defendant spouse.

12. Legislature has, in its wisdom,
enacted Section 13B (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 13B
(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.

13. The object of Section 13B(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 think and
reflect and take a considered decision as to
whether they should really put an end to the
marriage for all time to come.

14. In case of Amardeep Singh v.
Harveen Kaur (Supra), the question
which arose for consideration before the
Supreme Court was whether the minimum
period of six months stipulated under
Section 13-B(2) of Hindu Marriage Act,
1955 for a motion for passing decree of
divorce on the basis of mutual consent is
mandatory or can be relaxed in any
exceptional situation. After considering the
relevant case law, the Supreme Court held
as under in paragraph no. 9 of the
judgment, which is as follows:

"9. After considering the above
decisions, we are of the view that since
Manish Goel (supra) holds the field, in
absence of contrary decisions by a larger
Bench, power under Article 142 of the
Constitution cannot be exercised contrary
to the statutory provisions, especially when
no proceedings are pending before this
Court and this Court is approached only
for the purpose of waiver of the statute."

15. Thereafter, the Supreme Court
considered the question whether Section
13-B (2) of the Hindu Marriage Act, 1955
is to be read as mandatory or discretionary
and held that the period mentioned in
Section 13-B(2) of the Hindu Marriage Act
is not mandatory but directory. It will be
open to the court to exercise its discretion
is facts and circumstances of each case
where there is no possibility of parties
resuming
cohabitation
and
there
are
chances of alternative rehabilitation.

16. In paragraph no. 18 & 19 of the
Amardeep Singh v. Harveen Kaur
(Supra), the Apex Court held as under:

"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
following :
816 INDIAN LAW REPORTS ALLAHABAD SERIES

i) the statutory period of six
months specified in Section 13B(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;

iv) the waiting period will only
prolong their agony."

19. The waiver application can be
filed one week after the first motion giving
reasons for the prayer for waiver."

17. In case Smt. Pratibha v. Gaurav
passed in Matter Under Article 227 No.
1886 of 2020 decided on 04.03.2020, this
Court held that 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
option. The amendment was inspired by a
thought that forcible perpetuation of status
of matrimony between unwilling partners
did not serve any purpose. The object of
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 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 chance of fresh rehabilitation,
the Court should not be powerless in
enabling the parties to have a better option.

18. The Apex Court in case of Amit
Kumar v. Suman Beniwal reported in
2021 SCC Online SC 1270, has held as
under:

"21.
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.

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.

23. 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 (supra),
this Court held that the statutory waiting
4 All. Layak Singh Vs. Smt. Ekta Kumari
817
period of at least six months mentioned in
Section 13B (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 13B(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. 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 length of time for which
the litigation had been pending;

(v) whether there were any other
proceedings between the parties;

(vi) whether there was any
possibility of reconciliation;

(vii) whether there were any
children born out of the wedlock;

(viii) whether the parties had
freely, of their own accord, without any
coercion or pressure, arrived at a genuine
settlement which took care of alimony, if
any, maintenance and custody of children,
etc."

19. 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 the life.

20. In the present case, the petitioner
(husband) is aged about 34 years and the
opposite party (wife) is aged about 32
years. They got married on 29.06.2020 and
are living separately since 28.10.2020. It is
the case of the parties that every effort to
resolve their difference failed despite best
efforts being made by their family members
and other persons of the society. It is
further admitted that since both the parties
failed to reconcile their dispute they agreed
for divorce by mutual consent and entered
into a settlement according to which the
husband had to pay a sum of Rs. 6,00,000/-
to the wife. In the application which was
jointly made by both the parties for waiving
of the cooling period, it was stated that the
husband was in lookout for a job outside of
State of Uttar Pradesh and because of
pendency of this proceeding, he was not
able to join his new job and further the wife
also wanted to restart her life after the
divorce. In this case marriage was a non
starter. Admittedly,
the
parties
lived
together only for few months. After which
they
have
separated
on
account
of
irreconcilable differences. It is jointly
stated by the parties that the efforts at
reconciliation have failed. The parties are
unwilling to live together as husband and
818 INDIAN LAW REPORTS ALLAHABAD SERIES
wife. Even after over three years of
separation, the parties still wants to go
ahead with divorce. As the parties are
living separately for more than three years
soon after their marriage and they have
entered into a compromise to settle their
dispute amicably and has agreed for
divorce, specially considering the age of
the parties, no useful purpose would be
served by making the parties wait except to
prolong their agony rather it will be useful
that both the parties may be given a chance
to restart their life afresh after the divorce.
It is also admitted, in the present case, that
there are no issues out of the wedlock of
the parties.

21. The order passed by the Principal
Judge, Family Court, Agra is not consistent
with the judgment of Supreme Court in
case of Amardeep Singh v. Harveen
Kaur (Supra) and Amit Kumar v. Suman
Beniwal (Supra).

22. Learned counsel appearing for
petitioner
also
submitted
that
the
application filed by the petitioner as well as
opposite party for waiving off the cooling
period under Section 13-B(2) of Hindu
Marriage Act, 1955 be itself allowed by
this Court instead of remanding the matter
back to the Principal Judge, Family Court,
Agra after setting aside the order to decide
the same afresh. In this connection learned
counsel for the petitioner relied upon the
judgment of Supreme Court in case of Hari
Vishnu Kamath v. Syed Ahmad Ishaque
and others reported in 1954 (2) SCC 881
wherein the Supreme Court held:

"We are also of opinion that the
Election Tribunals are subject to the
superintendence of the High Courts under
article 227 of the Constitution, and that
superintendence is both judicial and
administrative. That was held by this Court
in Waryam Singh v. Amarnath (1954) 1
SCC 51, where it was observed that in this
respect article 227 went further than
section 224 of the Government of India Act,
1935, under which the superintendence was
purely administrative, and that it restored
the position under section 107 of the
Government of India Act, 1915. It may also
be noted that while in a certiorari
under article 226 the High Court can only
annul the decision of the Tribunal, it can,
under article 227, do that, and also issue
further directions in the matter. We must
accordingly hold that the application of the
appellant for a writ of certiorari and for
other
reliefs
was
maintainable
under articles
226 and 227 of
the
Constitution. (para 23)"

23. In case of Industrial Credit and
Investment Corporation of India Ltd. v.
Grapco Industries Ltd. and others
reported in (1999) 4 SCC 710, the Supreme
Court has held as under:

"14. The High Court also said
that on merits as well the Tribunal was
wrong in granting an ex parte order. It is
not that High Court itself considered the
merits of the case. The objection of the
High Court was twofold: (1) the Tribunal
did not give any reasons, and (2) it was an
omnibus order and that there was no
reference even to prayers in the application
and that the prayers stood allowed "in
terms of entire hog". Criticism of the High
Court appears to be correct on that
account. Judgment of the High Court,
however, does not refer at all to the facts of
the case and it proceeds more on abstract
principles of law. There was no bar on the
High Court to itself examine the merits of
the case in the exercise of its jurisdiction
under Article 227 of the Constitution if the
4 All. Devraj Singh Vs. Smt. Babli Devi
819
circumstances so require. There is no doubt
that High Court can even interfere with
interim orders of the courts and tribunals
under Article 227 of the Constitution if the
order is made without jurisdiction. But then
a too technical approach is to be avoided.
When the facts of the case brought before
the High Court are such that High Court
can itself correct the error, then it should
pass appropriate orders instead of merely
setting aside the impugned order of the
Tribunal
and
leaving
everything
in
vacuum."

24. Though, the application under
Section 13-B of Hindu Marriage Act has
been filed jointly by both the parties and
also that the application under Section 13B(2) of Hindu Marriage Act has been filed
by both the parties jointly. Since the
opposite party has not appeared before this
Court, it would be appropriate that a
direction be issued to the Principal Judge,
Family Court, Agra to pass appropriate
orders keeping in view the dictum of the
Supreme Court in case of Sureshta Devi v.
Om Prakash reported in (1991) 2 SCC 25
wherein the Apex Court has held that the
consent given by the parties to the filing of
a petition for a mutual divorce had to
subsist till a decree was passed on the
petition and that in the event, either of the
party withdrew the consent before passing
of the final decree, the petition under
Section 13-B of Hindu Marriage Act, 1955
would not survive and would have to be
dismissed.

25. In view of the discussion made
above, the writ petition is allowed and the
judgment and order dated 10.01.2014
passed by Principal Judge, Family Court,
Agra in H.M.A. Case No. 2978 of 2023
(Layak Singh v. Smt. Ekta Kumari), is
hereby quashed.

26. The application filed by the
petitioner as well as opposite party jointly
for waiving off the 'cooling period' under
Section 13-B (2) of Hindu Marriage Act, is
also ```

27. The Principal Judge, Family
Court, Agra is directed to consider and
decide application filed by the petitioner as
well as opposite party under Section 13-B
of Hindu Marriage Act registered as
H.M.A. Case No. 2978 of 2023 (Layak
Singh v. Smt. Ekta Kumari), in accordance
with law, expeditiously, preferably within a
period of two months from the date of
production of a certified copy of this order
after giving opportunity of hearing to the
parties concerned and without granting
unnecessary adjournments to either of the
parties provided that there is no other legal
impediment.
----------
(2024) 4 ILRA 819
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters U/A 227 No. 5882 of 2018 (Civil)

Devraj Singh ...Petitioner
Versus
Smt. Babli Devi ...Respondent

Counsel for the Petitioner:
Sri Mithilesh Kumar Tiwari

Counsel for the Respondent:
Sri Pradyumn Kumar

(A) Civil Law - Filing written statement
beyond 90-day limit - The Code of Civil
Procedure, 1908 - Order 8 Rule 1 - Written
Statement - Directory vs. Mandatory -
Exceptional Circumstances - The Hindu
Marriage Act,1955 - Section 21-B - Special