Item- 163. sg 19-08-2026 Ct. 6 CO 2688 of 2026 Soumik Sen Versus Ria Dutta Sen Mr. Rupayan Deb Ms. Priya Nandy …for the petitioner Mr. Anirban Guhathakurta Mr. Sujan Chtterjee Mr. Rohan Bavishi …for the opposite party This application under Article 227 of the Constitution of India is at the instance of the husband and is directed against an order being no. 2 dated 5th August, 2026 passed by the learned Additional District Judge, 13 Court, Alipore in Matrimonial Suit No. 2085 of 2026. By the impugned order, the application jointly filed by the petitioner and the opposite party under Section 151 of the Code of Civil Procedure with a prayer to waive the cooling off period of six months and to pass necessary orders of mutual divorce, stood rejected. The learned advocate appearing for the petitioner submits that the cooling off period as mentioned in Section 13B(2) of the Hindu Marriage Act is not mandatory but directory and it is open to the Court to exercise its discretion in the facts and circumstances of each case as to whether such cooling off period should be waived or not. In support of his contention, the learned advocate for the petitioner places reliance upon the several decisions of the Hon’ble Supreme Court. After going through the order impugned, this Court finds that the learned trial judge though recorded that the learned advocate relied upon several decisions of the Hon’ble 2 Supreme Court as well as passed by this Court but upon placing reliance on the decision of the Hon’ble Supreme Court in Civil Appeal No. 801/2026 [SLP(C) No. 3775/2026] Misha Somani versus Rituraj Somani, the trial court observed that in the said matter, the Hon’ble Supreme court in exercise of powers under Article 142 of the Constitution of India, passed an order. The Hon’ble Supreme Court in Amardeep Singh vs. Harveen Kaur reported in (2017) 8 Supreme Court Cases 746 held that the period mentioned in Section 13B(2) of the Hindu Marriage Act is not mandatory but directory and 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. The Hon’ble Supreme Court expressed the view that where the court dealing with the matter is satisfied that a case is made out to waive the statutory period under Section 13B(2) and do so after considering certain factors which has been specifically stated in paragraph 19 of the said judgment, which is reproduced hereinbelow: 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 d 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 success in that direction by any further efforts; (iii) the parties have genuinely settled their 3 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 waiven If the above conditions are satisfied, the waiver of the waiting period for the second motion wilk ho in the discretion of the court concerned. The Hon’ble Supreme Court in Amit Kumar vs. Suman Beniwal reported in 2021 SCC OnLine SC 1270 held that for the purpose of exercise of 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 should consider the factors which have been specifically stated in paragraph 27 of the said decision, which is set out hereinbelow: “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;” The Hon’ble Supreme Court in Amit Kumar (supra) 4 in exercise of its power under Section 142 of the Constitution granted the decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 thereby waiving the statutory waiting period of six months under Section 13B(2) of the said Act. In Misha Somani (supra) the Hon’ble Supreme Court also exercise the power under Section 142 of the Constitution of India and granted a decree of divorce by mutual consent. It is not in dispute that what the Hon’ble Supreme Court in exercise of its power under Section 142 of the Constitution can do, cannot be done by either of the High Courts or by the District Courts while considering the application under Section 13B(2) of the 1955 Act. However, the issue that arises for consideration in the case on hand, is whether the Court can exercise its discretion to waive the cooling period. It is now well-settled as observed hereinbefore that the cooling off period mentioned in Section 13B(2) is not mandatory but directory and several factors are to be taken into consideration for exercise of such discretion as specifically observed by the Hon’ble Supreme Court in the aforesaid decisions. The learned trial judge while passing the impugned order failed to take note of the law laid down by the Hon’ble Supreme Court as to whether the cooling off period as mentioned in Section 13B(2) is mandatory or not. It is for the trial court to decide upon taking into consideration the factors highlighted by the Hon’ble Supreme Court as to whether the cooling off period should be waived 5 or not in the instant case. For such reason, this Court is inclined to interfere with the order impugned. Accordingly, the impugned order is set aside. The application under Section 151 of the Code of Civil Procedure jointly filed by the petitioner and the opposite party before the learned District Judge stands restored to the file of the learned District Judge, South 24 Parganas at Alipore. The learned District Judge, South 24 Parganas at Alipore is requested to reconsider the said application on merits in the light of the decisions of the Hon’ble Supreme Court as well as the observation made by this Court in this order. With the aforesaid directions and observations, C.O. 2688 of 2026 stands disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities. (Hiranmay Bhattacharyya, J.)