The cooling off period as prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 is not mandatory but directory, and should be waived when there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

JUDGMENT :

1. The parties herein are husband and wife.

2. Present civil misc. appeal has been preferred on behalf of the appellant-husband being aggrieved with the order dated 01.09.2023 passed by the Family Court No.1, Jodhpur Metropolitan in Civil Case No.873/2023, whereby a joint application filed by the parties for waiver of six months “cooling off” period as prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 has been dismissed.

3. Factual matrix giving rise to the present appeal is that the marriage between the parties was solemnized on 28.11.2019 as per Hindu customs and rituals. Couple has not been blessed with any child out of the said wedlock. Relationship between the parties got strained and they are living seperately since 03.09.2020. Though the elders and family members of the parties had taken several efforts for re-union, it ended in vain. Now, both have agreed for divorce by mutual consent. Therefore, they filed a petition for dissolution of marriage by mutual consent under Section 13(B) of Hindu Marriage Act, 1955 before the Family Court No.1, Jodhpur Metropolitan.

4. Learned Presiding Officer made his efforts to settle the matter and the first motion counselling was made, but all the efforts failed and the hearing was adjourned to 03.02.2024. In the meanwhile, both the parties filed an application for waiving off cooling period of six months on 21.08.2023 but the learned Presiding Officer dismissed the same vide order dated 01.09.2023 on the ground that the parties have not disposed of their pending litigation filed against each other.

5. It is argued that after passing of impugned order dated 01.09.2023, all other cases have already been withdrawn/settled by the respective parties. The respondent has already paid Rs.12.5 Lakhs as permanent alimony to his wife. Now the waiting period will only prolong agony of the parties since no other issue is pending between them; that there is no possibility of their reunion; that any delay will affect the chances of their resettlement.

6. The learned Counsel for the appellant by referring the decision of the Hon'ble Supreme Court in “Amardeep Singh Vs Harveen Kaur” reported in (2017) 8 SCC 746 submits that since the parties have been living separately for the past more than three years, the statutory cooling off period has to be waived in case of mutual consent divorce, as per the guidelines of the Hon'ble Supreme Court.

7. Learned counsel for the respondent appeared suo moto. A copy of petition was supplied to him by learned counsel for the appellant. He, however, expressed his consent to waive the cooling off period. He also admitted that all the cases pending in various courts between the parties have been settled/withdrawn prior to filing of present appeal.

8. Heard the learned Counsel for the parties and perused the materials. We have also given due consideration to the issue involved.

9. It is admitted that the marriage between the parties was solemnized 28.11.2019 and they claim that they have been living separately from 03.09.2020. Now they have filed a petition before the Family Court seeking divorce on mutual consent.

10. The question that arises for consideration is to waive-off the cooling period, as required under Section 13-B(2) of the Act. The Hon'ble Supreme Court, in the decision in Amardeep Singh's case (supra), has held as follows:-

“16. 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 options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the 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 the parties when there was no chan