The main legal principle established is the irretrievable breakdown of marriage as a ground for divorce under Section 28 of the Special Marriage Act, 1954, and the court's discretion to condone the cooling-off period.

JUDGMENT :

(Goutam Bhaduri, J.) :

1. Heard.

2. The instant Appeal is filed by the Appellant/wife against the order and decree dated 10.05.2023 passed by the 2nd Additional Principal Judge, Family Court, Raipur in HMA Case No.488/2022.

3. The Petition was filed by the Appellant/wife under Section 25 of the Special Marriage Act, 1954 (for short ‘the Act of 1954’) claiming the marriage dated 18.12.2017 to be a nullity on different grounds. The Petition having been dismissed, the instant Appeal was filed before this Court.

4. During the course of hearing, both the parties were asked to appear in person. After brief interaction and conversation with them, both the parties submitted that they have been living separately for more than 4 years and cannot go along together. The primary effort made under Section 39(2) of the Act of 1954 to reconcile proved to be futile and both the parties who are present in person submitted that they do not want to continue with their relationship. The Appellant/wife further submitted that irrespective of the fact which has been stated in the main Petition, having admitted the marriage, they want to get divorce under Section 28 of the Act of 1954.

5. Divorce by mutual consent granted under Section 28 of the Act of 1954 is as under:-

“28. Divorce by mutual consent.- (1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the parties together 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petition referred to in sub-section (1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.”

6. Perusal of the said Section would show that a divorce Petition may be presented to the District Court by both the parties together 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 have mutually agreed that the marriage should be dissolved. Both the parties appearing in person have stated that they were living separately for the last more than 4 years and cannot live together any further and agreed that the marriage should be dissolved. Sub-section (2) of Section 28 of the Act of 1954 speaks of cooling period of 6 months that after filing of the Petition, the period of waiting has to be granted.

7. After brief interaction with the parties who appeared along with their respective Counsel, they submitted that they cannot go along together. In the matter of Amardeep Singh vs. Harveen Kaur, reported in (2017) 8 SCC 746, the Supreme Court had observed that the object of the provision is to enable the parties to dissolve a marriage by consent if the marriage is irretrievably broken down and to enable them to rehabilitate them as per available options and the object of cooling-off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled and it was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. With regard to statutory period, in a similar situation, while dealing with Section 13-B of the Hindu Marriage Act, the Supreme Court had further pointed out that whether the provision is mandatory or directory, language alone is not always decisive and in relevant paras i.e. 17 & 18, it has been observed as under