Under which circumstances the court must waive the cooling off period in petition for divorce by mutual consent?

 Normally, we come across cases where parties continue to fight, though there is no possibility of reconciliation. In such cases, the parties are encouraged to explore the possibility of an amicable settlement and are even referred for mediation so that they can put an end to the litigation. However, when the parties apply for divorce by mutual consent, they have taken a conscious decision to separate and thus have shown a reasonable approach. Such a decision shows that they have decided to move ahead, and thus, there is every chance of rehabilitation. The newly married couple not being able to reside together, or a couple married for quite some time is unable to continue to stay together for various reasons, itself would be a mental agony. Thus, once the Court is satisfied that the parties have taken a conscious decision to separate and move ahead and that there is no possibility of reconciliation, the Court should adopt a realistic approach and exercise the discretion to waive the waiting period. Hence, it is the duty of the Court to assist the parties by exercising the discretion to waive the cooling off period and free them from the stress of their application for divorce remaining pending. {Para 9}

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 9369 of 2024

In Re: Sneha Akshay Garg and Ors.

Hon'ble Judges/Coram:

Gauri Godse, J.

Citation:  MANU/MH/4846/2024

Decided On: 25.07.2024.

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Can cooling-off period U/ S 13-B(2) of Hindu Marriage Act for divorce by mutual consent be waived?

Perused the order impugned so also the judgment delivered by the Apex Court in the matter of Amardeep Singh v. Harveen Kaur delivered in Civil Appeal No. 11158 of 2017 (Arising out of Special Leave Petition (Civil) No. 20184 of 2017). The Apex Court in its judgment in the matter of Amardeep cited supra in paras 15, 16, 17, 18 and 21 has observed thus:—

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 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 child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.”

“21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

7. It is further informed by both the learned Counsel that aforesaid legal position is still holding the field and has not undergone any change. In the aforesaid backdrop, it will be appropriate in 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.

 In the High Court of Bombay

(Before Nitin W. Sambre, J.)

Kovelamudi Kanika DhillonVs Kovelamudi Surya Prakash Rao 

Writ Petition (St) No. 93737 of 2020

Decided on October 26, 2020

Citation: 2020 SCC OnLine Bom 2054

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