The statutory waiting period under Section 13-B(2) of the Hindu Marriage Act is directory and can be waived by the court if reconciliation is not possible and the parties have been separated for a significant period.

Judgment

Mr. Sumeet Goel, J.

The challenge in the present appeal is to an order dated 17.10.2023 passed by Principal Judge, Family Court, Patiala whereby application filed under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter to be referred as ‘the Act’) for waiving off the statutory period of six months has been rejected.

2. Succinctly facts first, as stated in the pleadings by the parties.

2.1 The marriage between the parties was solemnized on 19.02.2018 according to Sikh rites and ceremonies. They cohabited as husband and wife at village Dharkraba, Tehsil and District Patiala but no issue was born out of this wedlock. However, subsequently the parties started to live separately since January 2020, due to temperamental issues between them. As there were no chances of their reconciliation, the parties on 25.08.2023 filed a petition under Section 13-B of the Act before the Family Court seeking decree of divorce by mutual consent. By an order dated 28.08.2023, the Family Court recorded that the requirement of Section 13B(1) of the Act have been satisfied as the parties have been living separately for a period of more than one year but however with regard to Section 13B(2) of the Act, the parties were required to move a second motion, in accordance with the time frame provided therein. Accordingly, the matter was adjourned to 05.03.2024.

2.2 On 19.09.2023, the parties jointly moved an application before the Family Court seeking waiving off the statutory period of six months under Section 13B(2) of the Act. The Family Court, vide impugned order dated 17.10.2023, dismissed the application in view of the fact that the case of the appellants does not fall within the parameters fixed for waiving off the stipulated period of six months as mentioned under Section 13B(2) of the Act. Aggrieved by this order, the instant appeal has been filed.

3. Learned counsel for the appellant-husband has argued that the learned Family Court has adopted an unreasonable restrictive interpretation while adjudicating upon the application in question. According to him, as a period of 18 months have now admittedly elapsed since the parties started living separately, the application seeking waiver of the period of six months ought to have been allowed.

4. Mr. Avtar Singh Sandhu, Advocate appearing for the respondent-wife submits that he has no objection to the petition being allowed as there is no possibility of subsistence of marriage.

5. We have heard learned counsel for the parties and perused the available record with their assistance.

6. The prime point for determination in the present matter is as to whether the parties are entitled to the waiver off the statutory period of six months after presentation of petition for divorce by mutual consent under Section 13B(2) of the Act.

Relevant Statute

7. Section 13-B of the Hindu Marriage Act, 1955 reads as under:-

“13B. Divorce by mutual consent.--

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), 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 court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

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