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2023 Supreme(Online)(MAD) 32318
MADRAS HIGH COURT
Honourable Mr Justice B.PUGALENDHI
2023 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05.01.2023 CORAM: THE HONOURABLE MR.JUSTICE B.PUGALENDHI CRP(MD)No.21
(MD)No.21
The cooling-off period of six months under Section 13B(2) of the Hindu Marriage Act, 1955, is not mandatory but directory and can be waived by the court if it is satisfied that there is no possibility of reconciliation between the parties.
Headnote:
MUTUAL CONSENT DIVORCE - WAIVER OF COOLING-OFF PERIOD - [SECTION 13B(2) OF THE HINDU MARRIAGE ACT, 1955] - The cooling-off period of six months under Section 13B(2) of the Hindu Marriage Act, 1955, is not mandatory but directory. It can be waived by the court if it is satisfied that: (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 XXXIIA 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 the child, or any other pending issues between the parties; and (iv) the waiting period will only prolong their agony.
Fact of the Case:
The petitioners, a couple, filed a petition for dissolution of marriage by mutual consent under Section 13(B)(2) of the Hindu Marriage Act, 1955, in O.P.No.1182 of 2022, before the Family Court, Madurai. Along with the original petition, the petitioners also filed an interlocutory application in I.A.No.1633 of 2022 to waive the cooling-off period of six months. However, the trial court dismissed the application.
Finding of the Court:
The court held that the cooling-off period of six months under Section 13B(2) of the Hindu Marriage Act, 1955, is not mandatory but directory. It can be waived by the court if it is satisfied that the conditions laid down in the case of Amardeep Singh Vs Harveen Kaur reported in 2017 (4) RCR (Civil) 608 are met.
Issues: Whether the cooling-off period of six months under Section 13B(2) of the Hindu Marriage Act, 1955, is mandatory or directory?
Ratio Decidendi: The court relied on the decision of the Supreme Court in Amardeep Singh Vs Harveen Kaur reported in 2017 (4) RCR (Civil) 608, which held that the cooling-off period is not mandatory but directory and can be waived by the court if it is satisfied that there is no possibility of reconciliation between the parties.
Final Decision: The court disposed of the civil revision petition and waived the six months cooling-off period. The trial court was directed to decide the main divorce petition independently and dispose of the same within a reasonable time, preferably within two weeks from the date of receipt of a copy of the order.
CRP PD(MD)No.21 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(MD)No.21 of 2023
1.J.Rajkumar
2.Bahnisikha
... Petitioners
Vs
Nil
... Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order dated 15.11.2022 passed in
I.A.No.1633 of 2022 in O.P.No.1182 of 2022 on the file of the Family
Court, Madurai.
For Petitioners
: Mr.B.Asha
O R D E R
This Civil Revision Petition is filed as against the order
passed by the learned Judge, Family Court, Madurai in I.A.No.1633 of
2022 in O.P.No.1182 of 2022, dated 15.11.2022.
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CRP PD(MD)No.21 of 2023
2. The petitioners herein are husband and wife. Their
marriage was a love marriage and was solemnized on 01.02.2017, as
per Hindu customs and rituals. Out of the wedlock, they have blessed
with a female baby on 22.01.2021. 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)(2) of Hindu Marriage
Act, 1955 in O.P.No.1182 of 2022, before the Family Court, Madurai
and the same was posted for further hearing on 20.04.2023. Along with
the original petition, the petitioners also filed an interlocutory
application in I.A.No.1633 of 2022 to waive the cooling off period of
six months. However, it was dismissed by the trial Court. Hence, the
petitioners are before this Court with this Civil Revision Petition.
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CRP PD(MD)No.21 of 2023
3. The learned Counsel appearing for the petitioners 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 can be waived in cases of mutual consent
divorce. According to her, the petitioners have been living separately
for the past two years and she has made a specific averments that there
was no cohabitation among them and there is no possibilities between
them to restive, mediate or cohabit in future. The trial Court, without
considering these averments dismissed the application in I.A.No.1633
of 2022, under a wrong motion that there was no effective mediation
and reconciliation for reunion in accordance with law.
4. Heard the learned Counsel for the petitioners and
perused the materials placed on record.
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CRP PD(MD)No.21 of 2023
5. Admittedly, the marriage between the petitioners was a
love marriage and was solemnized on 01.02.2017. They claim that due
to some misunderstanding, they have been living separately for more
than two years. Now they have filed a petition in O.P.No.1182 of 2022,
before the Family Court, Madurai for dissolution of marriage by mutual
consent and the same is posted to 20.04.2023, in view of the
provisions under Order 13B (2) of the Act. Along with the original
petition, the petitioners have also filed an interlocutory application in
I.A.No.1633 of 2022 to waive the cooling off period of six months as
provided under 13B (2) of the Act. However, the same was dismissed
by the trial Court.
6.As per the orders of the Hon’ble Supreme Court, all the
efforts for mediation/conciliation including efforts under Order 32 A
Rule 3 of Civil Procedure Code, Section 23(2) of the Hindu Marriage
Act and Section 9 of the Family Courts Act to reunite the parties have
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CRP PD(MD)No.21 of 2023
to be taken and if it is failed and if there is no likelihood of success in
that direction, the Court may proceed further by
