The statutory waiting period under Section 13B(2) of the Hindu Marriage Act is directory, allowing courts discretion to waive it if reconciliation is unlikely and waiting prolongs distress.

Order

17/01/2024

1. This appeal is directed against the order dated 22.11.2023 passed by the Family Court No.1, Jodhpur, whereby, an application filed by the appellants and the respondent seeking waiver of the cooling period on an application preferred under Section 13B of the Hindu Marriage Act, 1955 (for short "the Act"), has been rejected.

2. The parties were married on 23.11.2010 and admittedly since 01.03.2011 they were living separately.

3. An application under Section 13B of the Act was filed on 19.09.2023 and the Family Court fixed the matter on 06.04.2024. In the meanwhile, on 30.10.2023, both the parties filed application seeking dispensing with the requirement of cooling period as provided under Section 13B (2) of the Act and granting decree of divorce based on mutual consent. However, the Family Court by its order dated 22.11.2023 came to the conclusion that in the facts and circumstances of the case, it cannot be denied that there is likelihood of resolving the dispute by mediation and consequently dismissed the application.

4. Counsel for both the parties made vehement submissions that disposal of the application by the Family Court is ex-facie contrary to the law laid by Hon'ble Supreme Court in the case of Amardeep Singh Vs. Harveen Kaur : (2017) 8 SCC 746 as well as Amit Kumar Vs. Suman Beniwal : 2021 SCC Online SC 1270 and Constitution Bench judgment in Shilpa Sailesh Vs. Varun Sreenivasan : Transfer Petition (Civil) No. 1118/2014 decided on 01.05.2023, and therefore, the order impugned deserves to be set aside.

5. Submissions have been made that the parameters as laid down in the case of Amardeep Singh (supra) and Amit Kumar (supra) are available in the present case and therefore, there was no occasion for the Family Court to have rejected the application, thus the order impugned deserves to be quashed and set aside.

6. We have considered the submissions made by the counsel for the parties and have perused the material available on record.

7. The indication made by the Family Court in its order impugned inter-alia reads as under:

8. A perusal of the order impugned would reveal that the Family Court, despite noticing the fact that the parties had lived together for about three months only and were living separately for over 12 years, without any material available on record, has recorded that there is likelihood of matter being resolved by mediation between the parties.

9. The Hon'ble Supreme Court on the aspect of waiving the mandatory period of six months in the case of Amardeep Singh (supra) while specifically dealing with the question 'whether the minimum period of six months stipulated under Section 13B (2) of the Act for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations' came to the following conclusion:-

19. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following :

(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 32-A Rule 3 CPC / Section 23(2) of the Act / Sect5ion 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.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discr