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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Leading judgment of Supreme court on Divorce by mutual consent

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 Code of Civil Procedure/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.

19. The waiver application can be fled one week after the first motion giving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

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.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11158 of 2017 

Decided On: 12.09.2017

 Amardeep Singh Vs. Harveen Kaur

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

Civil appeal No: 11158/2017.
Citation:(2017) 8 SCC 746,AIR 2017 SC 4417.

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