The court can exercise discretion to waive the cooling period for divorce by mutual consent under Sec.13(B) in exceptional situations, as outlined by the judgment of the Hon’ble Supreme Court.

JUDGMENT

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the order and decretal order dated 19.04.2022 in I.A.No. No. Nil of 2022 in FCOP No.NIl of 2022 now numbered as FCOP.No.64/2022 on the file of the Family Court, Tiruvannamalai.)

1. This Civil Revision Petition has been preferred challenging the order of the learned Judge, Family Court, Thiruvannamalai, dated 19.04.2022 made in unnumbered I.A. in FCOP.No.64/2002.

2. The revision petitioners are the couples who have presented this petition for divorce by mutual consent under Sec.13(B). After presenting the petition for mutual consent this Interlocutory Application has also been filed to waive the mandatory cooling period of 6 months under Sec.13(B)(2)(i) and the said petition was dismissed. Aggrieved over that this Revision Petition has been preferred.

3. Heard the submission made by the learned counsel for the revision petitioners and perused the materials available on record.

4.The learned counsel for the revision petitioners submitted that the couples were married on 23.05.2002 as per the Hindu Rites and Customs; the couples got a male child by name Tharun Bharathi, who was born on 25.05.2003; due to misunderstanding, the couples were living separately for 16 years; however during the year 2007 itself, the husband filed a petition for divorce in MC.No.130 of 2007 at Bangalore which was later transferred to Thiruvannamalai and renumbered as HMOP.No.31 of 2009; since the revision petitioners come to an understanding to get divorce by mutual consent, the earlier petition was withdrawn; several reconciliation made between the couples did not fructify and now they have filed the petition for divorce by mutual consent; the long period of 16 years of marriage did not bring out any mutual understanding between the couples and the cooling period is not going to serve any useful purpose; hence the same should be by reversed; the learned trial Judge without considering the irretrievable loss of marriage and invented its own reasons for not waiving the cooling period. In support of the above contention of the revision petitioner, the judgement of the Hon’ble Supreme Court reported in (2017) 8 SCC 746 [ Amardeep Singh Vs. Harveen Kaur] was cited.

5. In the above said judgement, it is held that the possibility to waive the cooling period can be considered by the Family Court provided in the opinion of the Court there is no possibility for reconciliation. The relevant part of the judgement is extracted as below:

“ 2017) 8 SCC 746

[Amardeep Singh Vs. Harveen Kaur]

13. Learned amicus 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 judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11, Delhi High Court in Dhanjit C.R.P.No.93 of 2021 Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11 AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt. It was submitted that Section 13B(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 13B(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 13B(2). Thus, the Court should consider the questions:

i) How long parties have been