Jayant Banerji, J.

1. With the consent of the learned counsel for the parties, this case was heard finally without calling for any counter-affidavit. The learned counsel for the respondent supports the case of the petitioner.

2. This petition has been filed seeking the following reliefs:-

"(A) Issue a writ order or direction to set aside the impugned order dated 26.5.2023 passed by Principal Judge Family Court, Kanpur Nagar in Matrimonial Petition No. 1217 /2023 (Harsh Vardhan Gupta Vs. Smt. Priya Gupta), whereby the application no. 8Ga(2) for cooling period of six months be rejected.

(B) Issue a writ order or direction to direct the Principal Judge Family Court, Kanpur Nagar to waive the cooling period and may fixed the date for determination of matrimonial petition for dissolution of decree of marriage in terms of mutual settlement application filed before the Principal Judge Family Court under Section-13B of Hindu Marriage Act and decide on the same day, as directed by this Hon'ble court."

3. It appears that a petition dated 23.5.2023 under Section 13-B of the Hindu Marriage Act, 19551 was filed jointly by both the petitioner as well as the respondent stating that the parties were married as per Hindu customs on 28.11.2021 in Kanpur Nagar. There was difference of opinion as a result of which, allegations and counter-allegations were made and fraud was alleged which led to a critical situation and no cohabitation and affection happened between the parties and despite efforts being made by relatives, there has been no reconciliation. It has been stated that due to differences, no matrimonial or physical relations were established.

4. It is further stated in that petition that the petitioner had left for her matrimonial home on 6.12.2021 and from which date, she is residing there. All items, gifts with jewellery have been returned pursuant to a compromise dated 12.4.2022 and on the basis of which compromise, it was decided that an amount of Rs. 15 lacs that was given to applicant no.1 (respondent in this petition) by way of gift and cash from time to time would be returned by him in two parts to the applicant no.2 (petitioner herein) i.e. Rs. 11 lacs at the time of execution of agreement dated 12.4.2022 in presence of witnesses and rest of Rs. 4 lacs would be submitted before the court for declaration of marriage as null and void. The amount spent by father of petitioner would be returned on the basis of compromise. It was decided that no proceedings under criminal law will be initiated against each other. It was further decided that an application moved by the petitioner bearing Case No. 1163 of 2022 under Section 12 of the Act would not be pressed by her. The parties were living separately for around 17 months. It was mentioned that other than Rs. 6,75,000/ which would be paid by applicant No. 1 to applicant No. 2 at the time of second motion, no amount is outstanding between them nor will any amount be due in future. It was mentioned that the petitioner and the respondent have no children from their said marriage.

5. Thereafter, an application dated 26.5.2023 (Annexure No.2 to this petition) was filed before the Principal Judge, Family Court, Kanpur Nagar seeking an early date to be fixed in the matter by waiving the requirement of six months cooling period in the facts and circumstances of the case. This application was supported by a joint affidavit of both the parties. By an order dated 26.5.2023, the aforesaid application bearing No. 8/C-2 was dismissed on the ground that there are no extraordinary circumstances reflected as to why the "cooling period” of six months be waived.

6. The contention of the learned counsel for the parties is that the Court has not considered the observations made in the case of Amardeep Singh Vs. Harveen Kaur (2017) 8 SCC 746 [LQ/SC/2017/1354] in correct perspective. Learned counsel have also relied upon a recent judgment of the Supreme Court in Shilpa Sailesh Vs. Varun Sreenivasan (Transfer Petition (Civil) No.1118 of 2014) passed on 1.5.2023.

7. In the judgement in Shilpa Sailesh (supra) the Supreme Court, while relying upon the judgment in Amardeep Singh (supra), has observed as follows:-

“14. Hindu marriage and divorce under the Hindu Marriage Act, 1955, 14. Hindu marriage is traditionally considered to be a sacred union a devout relationship that lasts till eternity. The Hindu Marriage Act provides the right to approach the court for dissolution of Hindu marriage by grant of a decree of divorce on the grounds mentioned in Section 13 thereof. The provisions of the Hindu Marriage Act have undergone considerable changes over a period of time. Section 13(1)(i-a) was enacted by the Marriage Laws (Amendment) Act, 1976 to provide for divorce in cases of cruelty. Section 13-B of the Hindu Marriage Act was introduced for providing divorce by mutual consent. Explanation was added to Section 9 of the Hindu Marriage Act, which relates to restitution of conjugal rights, stating that where a question of whether there has been reasonable excuse for withdrawal from society arises, the burden of proving reasonable excuse shall be on the person who has so withdrawn from the society. The effect of the said amendment, as noticed below, partially dilutes the rigours of sub-section (1)(a) to Section 23 of the Hindu Marriage Act, which stipulates that the court, while examining whether any ground for granting relief exists, should be satisfied that the petitioner is not, in any way, taking advantage of his/her own wrong or disability for the purpose of such relief.

15. Section 13-B of the Hindu Marriage Act reads as under:

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."

16. Section 13-B(1) of the Hindu Marriage Act states that a decree of divorce may be granted on a joint petition by the parties on fulfilment of the following conditions:

(a) the parties have been living separately for a period of one year or more before presentation of the petition;

(b) they have not been able to live together, and

(c) they have mutually agreed that the marriage should be dissolved.

Sub-section (2) to Section 13-B of the Hindu Marriage Act provides that after the first motion is passed, the couple/parties would have to move to the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than eighteen months of the first motion. No action can be taken by the parties before the lapse of six months since the first motion. When the second motion is filed, the court is to make an inquiry, and on satisfaction that the averments made in the petition are true, a decree of divorce is granted. Clearly, the legislative intent behind incorporating sub- section (2) to Section 13-B of the Hindu Marriage Act is that the couple/party must have time to introspect and consider the decision to separate before the second motion is moved. However, there are cases of exceptional hardship, where after some years of acrimonious litigation and prolonged suffering, the parties, with a view to have a fresh start, jointly pray to the court to dissolve the marriage, and seek waiver of the need to move the second motion. On account of irreconcilable differences, allegations and aspersions made against each other and the family members, and in some cases multiple litigations including criminal cases, continuation of the marital relationship is an impossibility. The divorce is inevitable, and the cooling off period of six months, if at all, breeds misery and pain, without any gain and benefit. These are cases where the object and purpose behind sub-section (2) to Section 13-B of the Hindu Marriage Act to safeguard against hurried and hasty decisions are not in issue and question, and the procedural requirement to move the court with the second motion after a gap of six months acts as an impediment in the settlement. At times, payment of alimony and permanent lump-sum maintenance gets delayed, while anxiety and suspicion remain. Here, the procedure should give way to a larger public and personal interest of the parties in ending the litigation(s), and the pain and sorrow effected, by passing a formal decree of divorce, as de-facto the marriage had ended much earlier.

17. Analysing the provisions of sub-section (2) to Section 13-B of the Hindu Marriage Act, this Court in Amardeep Singh v. Harveen Kaur went into the question of whether the cooling off period of six months is mandatory or discretionary. It was held that the cooling off period can be waived by the court where the proceedings have remained pending for long in the courts, these being cases of exceptional situations. It was held thus:

"14. The learned Amicus Curiae submitted that waiting period enshrined under Section 13-B(2) of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by the judgments of the Andhra Pradesh High Court in K. Omprakash v. K. Nalini, Karnataka High Court in Roopa Reddy v. Prabhakar Reddy, Delhi High Court in Dhanjit Vadra v. Beena Vadra and Madhya Pradesh High Court in Dineshkumar Shukla v. Neeta. Contrary view has been taken by the Kerala High Court in M. Krishna Preetha v. Jayan Moorkkanatt. It was submitted that Section 13-B(1) relates to jurisdiction of the court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13- B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13-B(2). Thus, the court should consider the questions:

(i) How long parties have been married

(ii) How long litigation is pending

(iii) How long they have been staying apart

(iv) Are there any other proceedings between the parties

(v) Have the parties attended mediation/conciliation

(vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties

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 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.”

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."

The time gap is meant to enable the parties to cogitate, analyse and take a deliberated decision. The object of the cooling off period is not to stretch the already disintegrated marriage, or to prolong the agony and misery of the parties when there are no chances of the marriage working out. Therefore, once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation, the court is not powerless in enabling the parties to avail a better option, which is to grant divorce. The waiver is not to be given on mere asking, but on the court being satisfied beyond doubt that the marriage has shattered beyond repair. The judgment in Amardeep Singh (supra) refers to several questions that the court would ask before passing an order one way or the other. However, this judgment proceeds on the interpretation of Section 13-B(2) of the Hindu Marriage Act, and does not examine whether this Court can take on record a settlement agreement and grant divorce by mutual consent under Section 13-B of the Hindu Marriage Act in exercise of the power under Article 142(1) of the Constitution of India.

18. We must acknowledge that this Court has very often entertained applications/prayers for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, and passed a decree of divorce without relegating or asking the parties to move a joint motion before the trial court. In such cases, other pending proceedings between the parties, civil and criminal, are appropriately dealt with in terms of the settlement, and are decreed, quashed or closed accordingly. This situation arises when proceedings are pending in this Court against an interim or a final order passed in a judicial proceeding, or on a transfer petition being filed before this Court. The parties may mutually agree to dissolve the marriage, albeit on many occasions they enter into settlements, often through mediation or on being prompted by the Court. In matrimonial matters, settlement, and not litigation, is the preferable mode of dispute resolution.

19. Exercise of jurisdiction under Article 142(1) of the Constitution of India by this Court in such cases is clearly permissible to do 'complete justice' to a 'cause or matter'. We should accept that this Court can pass an order or decree which a family court, trial court or High Court can pass. As per Article 142(1) of the Constitution of India, a decree passed or an order made by this Court is executable throughout the territory of India. Power of this Court under Articles 136 and 142(1) of the Constitution of India will certainly embrace and enswathe this power to do 'complete justice', even when the main case/proceeding is pending before the family court, the trial court or another judicial forum. A question or issue of lack of subjectmatter jurisdiction does not arise. Settlements in matrimonial matters invariably end multiple legal proceedings, including criminal proceedings in different courts and at diverse locations. Necessarily, in such cases, the parties have to move separate applications in multiple courts, including the jurisdictional High Court, for appropriate relief and closure, and disposal and/or dismissal of cases. This puts burden on the courts in the form of listing, paper work, compliance with formalities, verification etc. Parallelly, parties have to bear the cost, appear before several forums/courts and the final orders get delayed causing anxiety and apprehension. In this sense, when this Court exercises the power under Article 142(1) of the Constitution of India, it assists and aids the cause of justice.

20. However, there is a difference between existence of a power, and exercise of that power in a given case. Existence of power is generally a matter of law, whereas exercise of power is a mixed question of law and facts. Even when the power to pass a decree of divorce by mutual consent exists and can be exercised by this Court under Article 142(1) of the Constitution of India, when and in which of the cases the power should be exercised to do 'complete justice' in a 'cause or matter’ is an issue that has to be determined independent of existence of the power. This discretion has to be exercised on the basis of the factual matrix in the particular case, evaluated on objective criteria and factors, without ignoring the objective of the statutory provisions. In Amit Kumar v. Suman Beniwal this Court has held that reading of sub-sections (1) and (2) to Section 13-B of the Hindu Marriage Act envisages a total waiting period/gap of one and a half years from the date of separation for the grant of decree of divorce by mutual consent. Once the condition for waiting period/gap of one and a half year from the date of separation is fulfilled, it can be safely said that the parties had time to ponder, reflect and take a conscious decision on whether they should really put the marriage to end for all times to come. This period of separation prevents impulsive and heedless dissolution of marriage, allows tempers to cool down, anger to dissipate, and gives the spouses time to forgive and forget. At the same time, when there is complete separation over a long period and the parties have moved apart and have mutually agreed to separate, it would be incoherent to perpetuate the litigation by asking the parties to move the trial court. This Court in Amit Kumar (supra) has observed that, in addition to referring to the six factors/questions in Amardeep Singh (supra), this Court should ascertain whether the parties have freely, on their own accord, and without any coercion or pressure arrived at a genuine settlement which took care of the alimony, if any, maintenance and custody of children, etc.

21. In our opinion, Section 13-B of the Hindu Marriage Act does not impose any fetters on the powers of this Court to grant a decree of divorce by mutual consent on a joint application, when the substantive conditions of the Section are fulfilled and the Court, after referring to the factors mentioned above, is convinced and of the opinion that the decree of divorce should be granted.”

8. A perusal of the divorce petition which has been referred to above at length reveals that the parties were married on 28.11.2021, but not even a month had elapsed from the date of marriage that on 6.12.2021 the petitioner left for her matrimonial home. Both the parties have stated in the petition that despite efforts being made by all concerned, no reconciliation is possible under the facts and circumstances of the case. It appears that an elaborate compromise agreement dated 12.4.2022, the contents of which are referred above, has been entered into between the parties which is admitted to both the parties. Various conditions have been mentioned in the aforesaid compromise agreement that have the effect pre-empting the possibility of filing multiple civil and criminal cases against each other by the parties. As a matter of fact, under the terms of compromise, the petition filed under Section 12 of the Act as has been stated would be withdrawn as not pressed. The petition under Section 13-B of the Act was filed on 23.5.2023. It has been stated that there are no children born from the marriage of the parties concerned. However, perusal of the impugned order dated 26.5.2023 reveals that the Principal Judge, Family Court has observed that the parties have one child, though it is not reflected in the order that what material the Judge, Family Court, has relied upon to observe the aforesaid. The observation appears to be incorrect, given the fact that the parties have consistently stated that there has been no cohabitation between them and that they have no children.

9. The judgment of the Supreme court in Amardeep Singh (supra) has been quoted at length in the aforesaid judgment of the Supreme court in Shilpa Sailesh (supra). Paragraph 19 of the judgment of the Supreme Court in Amardeep Singh provides 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 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.

10. The Principal Judge, Family Court in its order of 26.5.2023 has observed that important thing is that the parties are young and not much time has elapsed since their marriage and separation. The Court has observed that it has yet not made any effort to take steps for mediation between the parties as it is possible that in view of the settlement between the parties, they may agree to stay together and thus, the grounds reflected in the application for waiver of cooling period are not adequate. The court has observed that no extraordinary circumstances are reflected in the application as to why the parties cannot wait for a period of six months and that if the cooling period of six months is not waived what extraordinary difficulties would they face. The court has further observed that the parties have one child also.

11. As noted above, the Principal Judge, family Court has not referred to any material on the basis of which it has been recorded that the parties have one child. Moreover, perusal of divorce petition under Section 13-B of the Act itself reveals that there are irreconcilable differences between the parties and a compromise dated 12.4.2022 has been arrived at by mutual consent, under which they have decided not to initiate any criminal proceeding or raise any claim in future against each other. The items given at the time of marriage, gifts and the entire jewellery and cash have been/would be returned. It has been stated that no matrimonial relationship was ever established as they have living separately for 17 months and there is no possibility of their living together thenceforth. It has been categorically stated in paragraph 12 of the divorce petition that the parties have no children. It is evident that the parties have preempted and put to rest possibility of multiple litigation including criminal cases between them by means of compromise dated 12.4.2022 which find mention in the petition for divorce. It has been stated by them that matrimonial relationship between them is impossible. Thus, the divorce is inevitable. As a result of aforementioned compromise between the parties, all future claims have also given up and as such, the matter relating any claim to maintenance/alimony have been sought to be put to rest.

12. As far as the Family court making all efforts for mediation/ conciliation in terms of order 32-A Rule 3 CPC, Section 23(2) of the Act and Section 9 of the Family Court Act to reunite the parties is concerned, the court has to be satisfied that whether there is a possibility of settlement between the parties consistent with nature and circumstances of the case, which satisfaction has not been recorded by the Family court. As noted above, the parties appear to have genuinely settled their differences including payment of money and all other pending issues between them and the waiting period will only prolong their agony of being forced to continue with a dead relationship.

13. Though apparently, the statutory period of one year mentioned in sub-section (1) of Section 13-B of the Act has come to an end prior to filing of the petition under Section 13-B, however, admittedly, the statutory period of six months specified in subsection (2) of Section 13-B remained to be completed when the petition dated 26.05.2023 was filed. Therefore, though there appear to be contradictions and non-consideration of relevant aspects in the order impugned, in view of the order proposed to be passed, the impugned order dated 26.5.2023, passed by the Family Court is not being interfered with.

14. Given the contents of this petition, which echo the averments made in the petition filed under Section 13-B of the Act before the Principal Judge, Family Court, it is open to the parties to move an appropriate application before the Family Court. In case such an application is filed/moved, the Family Court is requested to consider the same expeditiously and list the petition under Section 13-B of the Act at an early date for its consideration. Needless to add, the petition would be considered in accordance with law in view of the judgments of the Supreme Court in Amardeep Singh (supra) which was followed in the judgment of the Constitution Bench of the Supreme Court in Shilpa Sailesh (supra) and decided expeditiously without any unnecessary adjournment.

15. Learned counsel has also drawn the attention of this Court to a judgment dated 20.7.2023, passed by a Division Bench of this Court in First Appeal No. 839 of 2023 (Vijay Agarwal Vs. Suchita Bansal).

16. It is open for the parties to place the judgments before the Family Court for its consideration.

17. This petition is, accordingly, disposed of