Back
2024 Supreme(Online)(Bom) 8000
HIGH COURT OF BOMBAY
Gauri Godse, J
Ayushi Doshi – Appellant
Versus
None – Respondent
WRIT PETITION NO. 13721 OF 2024
For the Appellants/Petitioners: Himanshu Nagarkar, Kajal S, Kashish Bijlani
The six-month waiting period for divorce by mutual consent is directory, not mandatory. Courts should exercise discretion to waive this period when reconciliation is impossible and parties have settled all disputes, preventing unnecessary litigation and mental agony.
Headnote:(A) Hindu Marriage Act, 1955 - Sections 13B(1) and 13B(2) - Divorce by mutual consent - Statutory cooling-off period - Waiver of - The six-month waiting period provided under the statute is directory and not mandatory. Courts are empowered to exercise discretion to waive this period when satisfied that all efforts for reconciliation have failed, parties have resolved all issues including alimony and custody, and there is no possibility of resumption of cohabitation. Rigid adherence to this period, when reconciliation is impossible, serves only to prolong the litigation and cause mental agony. (Paras 17, 18, 23, 24)
(B) Judicial Procedure - Family Court - When parties are satisfied that reconciliation is not possible and the conditions for mutual consent are met, courts should avoid mechanical procedures such as repeated counseling or unnecessary waiting periods. A realistic and pragmatic approach is required to ensure that such petitions are disposed of on priority to avoid unnecessary delay. (Paras 6, 21, 23, 25)
Facts of the case:
Petitioners filed for dissolution of marriage by mutual consent after having lived separately for over one year. They submitted an application for the waiver of the six-month statutory cooling-off period. The lower court, while acknowledging the legal position that the waiting period is directory, declined to waive the period and referred the parties for counseling, citing the need for formal motions.
Findings of Court:
The court observed that the lower court failed to exercise its discretion properly despite being satisfied that reconciliation was impossible and that the parties were genuinely separated. It was found that the lower court's refusal to waive the period and the decision to refer parties to further counseling was inconsistent with the established legal principles aimed at preventing unnecessary litigation and suffering.
Issues: The main issues were whether the six-month statutory waiting period in mutual consent divorce is mandatory and whether the court was justified in refusing the waiver and referring the parties to further counseling.
Ratio Decidendi: The statutory cooling-off period is a precautionary measure to rule out the possibility of impulsive divorce. However, where parties have reached a firm, settled decision to separate and have lived apart for the statutory minimum duration, the court must adopt a realistic approach. If the court is satisfied that no scope for reconciliation exists and that the parties have settled all pending issues, the waiting period is no longer required and should be waived to avoid prolonging the parties' agony.
Result: Petition allowed; the cooling-off period was waived, and the marriage was declared dissolved.
| Table of Content |
|---|
| 1. procedural context for section 13b divorce petition waiver. (Para 1 , 2 , 3) |
| 2. legal interpretation of section 13b waiting period as directory. (Para 4 , 5 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
| 3. arguments regarding waiver necessity and family court efficiency reforms. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 4. court oversight on administrative delays in family court petitions. (Para 13 , 14) |
| 5. adjudication of immediate divorce on merits bypassing lower courts. (Para 15 , 24 , 25 , 26) |
| 6. guiding principles for applying section 13b waiver discretion. (Para 23) |
| 7. final order granting divorce and administrative reporting directives. (Para 27) |
ORAL JUDGMENT:
1. Heard. Rule. Rule made returnable forthwith. With the consent of the parties, the petition is taken for final disposal.
2. This petition takes exception to the order passed by the Family Court No. 4, Mumbai, on 23rd August 2024 below Exhibit 10 for waiver of the cooling off period provided under sub-section (2) of Section 13B of The Hindu Marriage Act (‘the said Act). The petitioners filed a petition under Section 13B for dissolution of their marriage by consent. The petition was filed on 19th June 2024. Thereafter, petitioners filed an application below exhibit 10, praying for waiver of the cooling off period of six months as provided under sub-section (2) of Section 13B of the said Act.
3. The learned Judge of the Family Court has partly allowed the application; however, referred the parties for counselling for the first motion and directed to list the matter for the second motion on 6th November 2024. The said order is impugned in this petition. Learned Judge in the operative order has recorded that the application is partly allowed; however, has not passed any order regarding waiving the cooling off period. A perusal of the impugned order indicates that all the decisions regarding the principles that are settled with reference to cooling off period were tendered before the learned Judge.
4. By referring to the decision of the Hon'ble Apex Court in the case of Amardeep Singh Vs. Harveen Kaur 1(2017) 8 Supreme Court Cases 746, learned Judge, held that the Court is required to consider whether the cooling off period has expired before submission of the first motion. The learned judge has referred to the date of filing the petition, the registration of the petition, and the consent terms tendered by the parties. Learned Judge further observed that in view of the Judgment of the Hon'ble Apex Court, 18 months period from the date of separation was not completed. Learned Judge has further observed that it was a fit case to invoke powers under Section 10 of the Family Courts Act and the ratio laid down by the Apex Court.
5. The learned Judge has further observed that by applying the ratio laid down by the Hon'ble Apex Court, a six-month waiting period is held directory and not mandatory. Thus, by invoking powers under the Family Courts Act, the learned Judge proceeded to pass the order. In spite of observing that it was a fit case to exercise jurisdiction, the learned Judge has not passed an order for waiving the cooling off period and instead has referred the parties for counselling for the first motion. The reasons recorded in the impugned order and the operative order are inconsistent.
6. Learned counsel appearing for the petitioners submits that after registration of the petition for divorce by mutual consent, the parties were referred for counselling and that there was no reason for again referring the parties for counselling. He submits that even otherwise, once the parties are held to be entitled to waiver of the cooling off period, there was no occasion for referring the parties for counselling for the first motion.
7. Learned counsel for the petitioners further submits that the decision of the Hon’ble Supreme Court in the case of Amardeep Singh consistently followed in subsequent decisions of this Court in the case of Sneha Akshay Garg and anr 22024 S
