Mutual consent divorce under Hindu Marriage Act can lead to waiving the mandatory six-month waiting period if irretrievable breakdown of marriage is established.

JUDGMENT

ANTONY DOMINIC,J.

This appeal arises from the judgment in O.P.No.691/2011 on the file of the Family Court, Kozhikode.

2. O.P.No.691/2011 was filed by the respondent, under Section 13(1) (ia) of the Hindu Marriage Act, seeking divorce from the appellant. The matter was contested and after recording evidence tendered by both sides, the Family Court, by its judgment dated 6th December 2012, allowed the O.P. and accordingly, the marriage between the parties, solemnized on 23.4.2003, was dissolved by a decree of divorce effective from the date of decree. Aggrieved by the said judgment and decree passed by the Family Court, the appellant, who was the respondent before the Family Court, has filed this appeal.

3. When the appeal was taken up for consideration, this Court passed order dated 02-4-2013 referring the matter for mediation before the High Court Mediation Centre. Accordingly, the matter was mediated and the Mediator of the High Court Mediation Centre made report dated 3rd April, 2013 informing that the dispute between the parties have been settled. The settlement also has been enclosed to the Report. One of the terms agreed between the parties was that the they will file a petition in the appeal for a mutually agreed divorce as envisaged under Section 13B of the Hindu Marriage Act,1955. In pursuance to the above agreement, the parties have filed I.A.No.2160/2013, a joint petition duly signed by both of them, with a prayer to pass a decree dissolving the marriage between them on the basis of mutual consent. They have also filed I.A.No.2308/2013 under Section 151 of C.P.C. requesting that the statutory period of six months provided in Section 13B of th Act be dispensed with.

4. Having heard the learned counsel for the parties and also on going through the averments in I.A.No.2160/13, we are satisfied that the marriage between the appellant and the respondent has been irretrievably broken down and that there is no possibility at all for the reunion of the couple. We are also satisfied that I.A.No.2160/13 now filed is not vitiated on account of any coercion, fraud or any such vitiating circumstances and that therefore, the marriage is liable to be dissolved by a decree of divorce on mutual consent.

5. The surviving question is whether the prayer of the parties for dispensing with the six months waiting period is to be allowed. It is true that under Section 13B (1) of the Hindu Marriage Act, it is mandatory that once an application for divorce is filed, the Court should wait for six months period after presentation of the application. This is a case where the Family Court has already granted a decree of divorce by its order dated 6.12.2012 and by I.A.No.2160/2013, the said order of divorce is sought to be modified into one based on mutual consent.

6. The legislative policy behind the waiting period prescribed under Section 13B of the Act has been considered by a Division Bench of this Court in almost identical circumstances in Visalakshi v. Shivaraman Nair [1991 (1) KLT 910] and that Bench granted a decree of divorce under Section 13B dispensing with the requirement of waiting period stating thus:

“4. The question naturally arising is whether this court can pass a decree under S.13B of the Hindu Marriage Act without following the formalities prescribed in the provision. According to S.13B, on a petition beging so presented alleging that the spouses have been living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved, the court shall, on being satisfied, after hearing the parties and after making such enquiries which it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pas a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree on the motion of both the parties made not earlier than six months after the date of the presentation