Divorce by Mutual Consent: Bombay High Court Allowed a Plea for Waiving the Cooling-off Period
The Bombay High Court allowed a Joint plea for waiving the Cooling-off period as mentioned under Section 13B of the Hindu Marriage Act and directed the family court to decide the divorce plea of a couple on an urgent basis.
What is Section 13B (2) of the Hindu Marriage Act?
Section 13B(2) [Cooling-off period] contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was inserted to facilitate the parties to have a rethink so that the court can grants divorce by mutual consent only if there is no chance for reconciliation.
Facts of the Case
Parties to the Petition were married on 15th August, 2014 which was duly registered with the Office of District Registrar, Hyderabad (South) on 6th September, 2014.
A joint Petition was tendered by the parties for divorce by mutual consent pursuant to the provisions of Section 13B [Cooling-off period] of the Hindu Marriage Act, 1955.
It was submitted that parties are staying separately since December 2018 till date and are independently leading their lives. They are unable to live together. They have mutually agreed to end the marriage and as such, proceedings under Section 13B of the Hindu Marriage Act came to be initiated on 4th August, 2020.
The said proceedings being Petition No.F-1023 of 2020 initiated before the Family Court, Bandra, was accompanied with the application for waiving statutory period provided under Section 13B(2) [Cooling-off period] of the Hindu Marriage Act, 1955.
Conversely, the family court rejected the joint application for waiving statutory period, and therefore, they moved High Court.
The Counsel for the Petitioner (Wife) has invited attention of this Court to the specific pleadings that the Petitioner is carrying pregnancy from another person with whom she intends to settle by performing marriage and that being so; there is urgency in the matter.
It was further agreed between the parties that the Respondent (Husband) shall give his residential house to the Petitioner on such terms as are settled in between them as narrated in para 6(d) of the Consent Terms filed before the Family Court.
The learned Counsel for the Respondent husband has consented for the submissions made by the learned Counsel for the Petitioner and submitted that he is equally supporting the case of the Petitioner for waiving the statutory period.
Observations made by the Court
The High Court relied on the Supreme Court’s verdict in the case of Amardeep Singh vs. Harveen Kaur AIR 2017 SC 4417, in which it was held that,
“Where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B (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 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; iv) the waiting period will only prolong their agony.”
The Bench of Justice Nitin W. Sambre opined in this regard that,
“It will be appropriate in the fitness of things, particularly having regard to the medical/health condition of the Petitioner, to allow the joint application moved for waiving the period as specified under Section 13B of the Hindu Marriage Act. The joint request for waiver of statutory period under Section 13B of the Hindu Marriage Act is allowed by quashing and setting aside the order impugned.”
The Court further added that “let the Family Court decide the application for divorce as expeditiously as possible and if required by directing parties to attend the Family Court Proceedings physically or through video conferencing as it deems fit in the facts and circumstances of the case“.
Case Name – Kovelamudi Kanika Dhillon @ Kanika Dhillon v. Kovelamudi Surya Prakash Rao @ Prakash Kovelamudi
Case no.: WP (ST) NO.93737 OF 2020
CORAM: NITIN W. SAMBRE, J.