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2019 Supreme(P&H) 2604
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Raj Mohan Singh, J.
Dharamveer - Appellant
Versus
Rekha Maurya - Respondent
CR No. 3071 of 2019
Decided On : 09-05-2019
Nafees Ahmad Khan, Advocate, for the Appellant
The court has discretion to waive the statutory cooling period under Section 13-B(2) of the Hindu Marriage Act based on the facts and circumstances of the case.
Headnote:
Hindu Marriage Act - Waiver of Statutory Cooling Period - Section 13-B(2) - Summary
Fact of the Case:
Parties filed for divorce by mutual consent under Section 13B of Hindu Marriage Act. The wife had custody of their daughter and they had been living separately for over a year.
Finding of the Court:
The court found that the parties had genuinely settled their differences and waived the statutory cooling period, allowing them to part ways by taking divorce with mutual consent.
Issues: Waiver of statutory cooling period under Section 13-B(2) of Hindu Marriage Act.
Ratio Decidendi: The court relied on the case of Amardeep Singh v. Harveen Kaur, where it was held that the period mentioned in Section 13-B(2) is directory, not mandatory, and the court has discretion to waive the period based on the facts and circumstances of the case.
Final Decision: The revision petition was allowed, and the impugned order was set aside. The remaining amount of alimony was to be paid before the trial court, and necessary statements were to be recorded by the trial court.
JUDGMENT/ORDER
Raj Mohan Singh, J. - Petitioners have jointly filed this revision petition against the order dated 29.04.2019 passed by Additional Principal Judge, Family Court, Gurugram vide which statutory cooling period of six months, was not dispensed with.
2. Parties were married on 28.01.2014 according to Hindu rites and ceremonies. One female child took birth out of this wedlock on 16.03.2016 and the daughter is in care and custody of wife i.e. petitioner No. 2.
3. Due to matrimonial discord, the parties could not pull on matrimonial ties smoothly and as a result of that, both of them decided to take divorce by mutual consent.
4. A petition under Section 13B of Hindu Marriage Act was filed on 01.04.2019. Statements of the parties in first motion were recorded on 01.04.2019 itself and the case was adjourned to 07.10.2019 for recording their statements in second motion. Parties are living separately since September, 2017. Petition under Section 13B of Hindu Marriage Act for divorce was filed on 01.04.2019 i.e. after expiry of one year of separation.
5. In Amardeep Singh v. Harveen Kaur, 2017 (4) RCR (Civil) 608, the Honble Apex Court has observed that the period mentioned in Section 13-B (2) of Hindu Marriage Act is not mandatory, rather the same is directory and it is open to the Court to exercise its discretion in the facts and circumstances of the case. The Court has to see whether there is any possibility of resuming cohabitation between the parties or there is any chance of rehabilitation.
6. Section 13-B (1) of the Act relates to the 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 13-B(2) of the Hindu Marriage Act is procedural. The discretion to waive the period is a guided discretion by considering the interest of justice where there is no chance of reconciliation and parties were separated for a longer period. The Court has to consider the period for which the parties have been married.
7. According to the petitioners, effort to reconcile has not yielded any positive result. The compromise arrived at between the parties is genuine and is in the interest of the parties. The custody of minor daughter shall remain with her mother. Interest of the minor has been taken care of by fixing permanent alimony for the wife as well as for the child. Adequate arrangement has been made for the minor child towards her past, present and future maintenance.
8. For waiving the statutory period under Section 13-B (2) of the Hindu Marriage Act, following conditions are to be fulfilled:-
(i) the statutory period of six months specified in Section 13-B(2) of the Hindu Marriage Act in addition to the statutory period of one year under Section 13-B(1) of the Hindu Marriage Act of separation of the parties is already over before the first motion itself;
(ii) all efforts for mediation and conciliation including efforts in terms of Order 32 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 of success in that direction by any further efforts;
(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties:;
(iv) the waiting period will only prolong their agony.
9. Evidently, Section 13-B (2) of Hindu Marriage Act is not mandatory but the same is directory. Both the parties are living separately for the last more than one year. Parties with a view to secure their better prospects have entered into a settlement before filing the petition under Section 13-B of the Act vide which they have decided to dissolve their marriage by mutual consent. Marriage between the parties has broken irretrievably and there is no compatibility between them. They have already exchanged their jewelleries with each other. Petitioner
