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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
B.PUGALENDHI, J.
K.Saumya Shanmugathai – Appellant
Versus
Nil - Respondent
CRP(MD)No.2570 of 2022
Decided on : 21-12-2022
Divorce - Mutual Consent - Hindu Marriage Act, 1955 - Section 13B(2) - Waiver of Cooling Off Period - [DIVORCE] - [MUTUAL CONSENT] - [Hindu Marriage Act, 1955 - Section 13B(2)] - The court discussed the waiver of the cooling off period under Section 13B(2) of the Hindu Marriage Act, 1955, as per the guidelines provided by the Hon'ble Supreme Court in Amardeep Singh's case. It emphasized the obligation of the courts to make last-minute efforts to save the marriage and considered the irretrievable breakdown of the marriage as grounds for waiving the cooling off period. The court held that the cooling off period is not mandatory but directory, and waived it in the present case to enable the parties to proceed with the mutual consent divorce process.
Fact of the Case:
The petitioners, husband and wife, sought divorce by mutual consent under Section 13(b) of the Hindu Marriage Act, 1955. They had been living separately since August 2018 and filed a petition for dissolution of marriage by mutual consent. The trial Court had posted the case for hearing on 09.06.2023. The petitioners filed a civil revision petition seeking a direction to dispose of the petition at the earliest.
Finding of the Court:
The court found that the cooling off period under Section 13B(2) of the Hindu Marriage Act, 1955 could be waived in cases where there was no possibility of parties resuming cohabitation and the parties had genuinely settled their differences. It held that the cooling off period is not mandatory but directory, and waived it in the present case. The court directed the trial Court to decide the main divorce petition independently and dispose of the same after ascertaining the bonafideness of the consent of the parties.
Issues: The main issue was whether the cooling off period under Section 13B(2) of the Hindu Marriage Act, 1955 could be waived in cases of mutual consent divorce where there was no possibility of parties resuming cohabitation.
Ratio Decidendi: The court held that the cooling off period mentioned in Section 13B(2) of the Hindu Marriage Act, 1955 is not mandatory but directory. It emphasized the obligation of the courts to make last-minute efforts to save the marriage and considered the irretrievable breakdown of the marriage as grounds for waiving the cooling off period.
Final Decision: The civil revision petition was allowed, and the six months cooling-off period was waived. The trial Court was directed to decide the main divorce petition independently and dispose of the same after ascertaining the bonafideness of the consent of the parties. The petitioners were ordered to appear before the Family Court, Madurai on 05.01.2023. No costs were awarded.
ORDER :
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to direct the learned Family Judge, Madurai to dispose of the petition in H.M.O.P.No.1368 of 2022 pending on its file at the earliest within the time frame fixed by this Court.
This Civil Revision Petition is filed for an early disposal of H.M.O.P.No.1368 of 2022, pending on the file of the Family Court, Madurai, which is filed by mutual consent.
2. The petitioners herein are husband and wife. Their marriage was solemnized on 05.11.2017, as per Hindu customs and rituals. Out of the wedlock, they have blessed with a female baby on 28.07.2018. Thereafter, their relationship got strained and they decided to separate mutually. Though the elders and family members of the petitioners had taken several efforts for re-union, it ended in vain. Now, both have agreed for divorce by mutual consent. Therefore, the petitioners filed a petition for dissolution of marriage by mutual consent, under Section 13(b) of Hindu Marriage Act, 1955 in H.M.O.P.No.1368 of 2022, before the Family Court, Madurai in the month of November 2022. The grievance of the petitioner is that the learned Judge of the Family Court, Madurai posted the case on 09.06.2023. Hence, a suitable direction may be issued to the learned Judge to dispose of H.M.O.P.No.1368 of 2022 immediately as it is filed by mutual consent.
3. The learned Counsel for the petitioner further by referring the decision of the Hon'ble Supreme Court in Amardeep Singh Vs Harveen Kaur reported in 2017 (4) RCR (Civil) 608 and Amit Kumar Vs Suman Beniwal [C.A.No.7650 of 2021] submits that statutory cooling off period has to be waived in cases of mutual consent divorce. Since the petitioners have been living separately for the past four years, the statutory cooling off period shall be waived, as per the guidelines of the Hon'ble Supreme Court.
4. Heard the learned Counsel for the petitioners and perused the materials.
5. It is admitted that the marriage between the parties have been solemnized 05.11.2017 and they claim that they have been living separately from August 2018. Now they have filed a petition in H.M.O.P.No.1368 of 2022 before the Family Court, Madurai, seeking divorce on mutual consent. The trial Court posted the case on 09.06.2023. Aggrieved over the same the present civil revision petition has been filed.
6. The question that arises for consideration is to waive-off the cooling period, as required under Section 13B(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 chance of reconciliation.
Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. ... ... ...
18. 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 13B(2), it can do so after considering the following :
i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(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 XX
The court has the discretion to waive the cooling-off period for divorce by mutual consent based on the circumstances of each case and the bonafideness of the parties' consent.
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 cohabi....
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.
The statutory waiting period for divorce by mutual consent under the Hindu Marriage Act can be waived if there is no possibility of reconciliation and prolonged waiting would only cause additional di....
The court emphasized that the conditions for waiving the statutory waiting period of six months for divorce under Section 13B(2) of the Hindu Marriage Act are not mandatory, and the court can exercis....
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