Advocates:
For the Appellants/Petitioners: Mr. Srinjay Das, Ms. Chaitali Manna, Ms. Kiron Roy, Mr. Subrata Majumndar
For the Respondents: Mr. Purbangshu Chandra Mitra, Ms. Piyali Mitra

Case Summary

This appeal under Article 227 of the Constitution challenges an order dated 21st August 2023 by the Additional District Judge, 1st Court, Sealdah, in Mat. Suit No. 325 of 2023, which rejected an application under Section 151 CPC seeking waiver of the six-month cooling-off period mandated by Section 28 of the Special Marriage Act, 1954, in a divorce by mutual consent petition. (!) (!) (!)

Both the husband (appellant) and wife (respondent), represented by counsel, consented to waiving the cooling-off period. (!)

The court affirmed that the cooling-off period under Section 28 is directory, not mandatory, granting discretion to waive it where the court is satisfied of an irretrievable marriage breakdown, no possibility of resuming cohabitation, failed reconciliation efforts (including mediation), prolonged separation, and that further delay would only extend suffering. Factors for consideration include: duration of marriage, pendency of litigation, separation period, other proceedings, mediation attendance, and genuine settlement on alimony, child custody, or related issues. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

The trial court's reliance on a Supreme Court order under Article 142 was noted, but the High Court emphasized case-specific discretion guided by justice and public policy, without requiring Article 142 invocation at lower levels. (!) (!) (!) (!)

The appeal succeeded: impugned order set aside; trial court directed to reconsider the waiver application afresh applying the outlined principles, with liberty to expedite hearings; no costs ordered. (!) (!) (!) (!) (!)