Supreme Court: The 6-month statutory "cooling-off" period for mutual consent divorce can be waived if there is zero possibility of reconciliation.

As rightly submitted by

the learned counsel appearing for the parties, the

decision in Amardeep Singh (supra) has been taken

note of, and explained by this Court in Amit Kumar

v. Suman Beniwal – (2023) 17 SCC 648. Paras 18 to 21

of the same states as follows:

“18. Where there is a chance of

reconciliation, however slight, the cooling

period of six months from the date of

filing of the divorce petition should be

enforced. However, if there is no

possibility of reconciliation, it would be

meaningless to prolong the agony of the

parties to the marriage. Thus, if the

marriage has broken down irretrievably, the

spouses have been living apart for a long

time, but not been able to reconcile their

differences and have mutually decided to

part, it is better to end the marriage, to

enable both the spouses to move on with

life.

21. The Family Court, as well as the High

Court, have misconstrued the judgment of

this Court in Amardeep Singh v. Harveen

Kaur (supra) and proceeded on the basis

that this Court has held that the

conditions specified in para 19 of the said

judgment, quoted hereinabove, are mandatory

and that the statutory waiting period of

six months under Section 13-B(2) can only

be waived if all the aforesaid conditions

are fulfilled, including, in particular,

the condition of separation of at least

one-and-half year’s before making the

motion for decree of divorce.”

When the parties have taken a conscious decision

to seek a decree of divorce by mutual consent under

Section 13B of the Act, there is no point in keeping

the marriage continuing. 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO . 80 1 /202 6

[@ SLP [C] NO.3775/2026]

MISHA SOMANI  Vs RITURAJ SOMANI 

Dated: FEBRUARY 02, 2026.

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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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Whether the family court can refuse to grant divorce by mutual consent if husband and wife are residing under the same roof?

Petitioners being the estranged couple, had moved a Petition for decree of dissolution of their marriage on the basis of mutual consent. In support of that, certain grounds are urged. The matter having been sent to Mediation, a report dated 2.1.2023 was furnished to the court reporting settlement. Parties had moved a Compromise Petition too, in terms of settlement arrived at before the conciliator. However, learned Judge of the Family Court, Bengaluru, has negatived the claim for grant of dissolution of marriage on the sole ground that the spouses are residing under the same roof.

2. Learned counsel appearing for the Petitioners finds fault with the impugned order contending that in matters like this, the fact that the parties are residing under the same roof, pales into insignificance except for the purpose of territorial jurisdiction. The fact that the spouses are residing in the same premises could not have been a ground for making the order of the kind. Such a flawed reasoning bewilders the Court, to say the least. Such a fact arguably may show the good culture of the spouses who are otherwise at loggerheads. The reason assigned by the Court below for denying relief to the parties constitutes an error of great magnitude apparent on the face of the record.

3. In view of the above, this Petition succeeds; a Writ of Certiorari issues quashing the impugned order; matter is remitted to the portals of the learned Judge of the Court below, requesting him to pass a judgment & decree in terms of the Compromise Petition and the report of the Mediator.

 In the High Court of Karnataka

(Before Krishna S. Dixit, J.)

Divya Ganesh Nallur and Another Vs

Nil 

Writ Petition No. 24429 of 2022 (GM-FC)

Decided on June 8, 2023

Citation: 2023 SCC OnLine Kar 28

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Can power of attorney represent a party in divorce by mutual consent proceeding?

 In Harshada Bharat Deshmukh v. Bharat Appasaheb Deshmukh, MANU/MH/0602/2018 : AIR 2018 Bombay 148 : [2018 (2) HLR (Bom.) 148], the Bombay High Court considered Section 10 of the Family Courts Act, Order III Rule 1 of CPC, Order VI Rules 14 and 15 of CPC and various judgments on the aspect of representation of a party through a Power of Attorney and in the context of Section 13B of the Act, observed, that there is nothing under the said provision which would bar a Power of Attorney holder to represent a party and observed as under:-

"(10) Section 13B of the Hindu Marriage Act do not contain any provision abrogating the power of power of attorney holder under the Code of Civil Procedure, and therefore, the procedure governing the proceedings filed under Section 13B of the Hindu Marriage Act would be governed by Order III as well as Order VI of the Code of Civil Procedure.  {Para 22}

 IN THE HIGH COURT OF KARNATAKA

M.F.A. No. 4453 of 2020 (FC)

Decided On: 10.11.2020

In Re: Aditya Jagannath and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Neranahalli Srinivasan Sanjay Gowda, JJ.

Citation: MANU/KA/5159/2020

Author: B.V. Nagarathna, J.

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Whether family court can permit dissolution of Muslim marriage by mutual consent?

As already mentioned supra, the Hon'ble Division Bench of High Court of Kerala at Ernakulam, had categorically held that 'mubaraat' is a form of an extra-judicial divorce based on mutual consent under Islamic law and same is valid, as it remains untouched by the Dissolution of Muslim Marriages Act. The court below, in such circumstances, is neither called upon to adjudicate nor called upon to dissolve the marriage by decree of divorce. On the other hand, the Family Court only has to declare the marital status by endorsing the mubaraat invoking jurisdiction under Explanation (b) of Section 7(1) of the Family Courts Act. Once a declaration of joint divorce invoking bubaraat is produced before the Family Court, the Family Court has to pass a decree declaring the matrimonial status of the parties. The inquiry in such cases is limited to the extent to find out whether both parties have agreed upon to dissolve such marriage invoking mubaraat. Once the Family Court is satisfied that mubaraat is executed by both the parties, it shall declare the matrimonial status of such parties. Hence, this Court is of the considered view that the Family Court is bound to entertain a petition for declaration of the status based on mubaraat. In view of the above, the order passed by the learned Principal District Munsif, Alandur in O.S. Sr. No. 744/2020 dated 28.09.2020 is set aside and the parties are at liberty to approach the concerned Family Court with appropriate jurisdiction. Thereafter, the concerned Family Court shall dispose of the matter, if both the parties have filed petition and after making a formal inquiry without any further delay treating it as an uncontested matter in the light of the guidelines issued by the Hon'ble Division Bench, High Court of Kerala, Ernakulam in the judgment in O.P.(FC) No. 352/2020 and connected cases dated 23/3/2021 and the present Civil Revision Petition is allowed. No costs.

5. We have carefully gone through the allegations made in the complaint and also police papers. It appears that the parties have decided to get separated by mutual consent and accordingly approached the Family Court by filing a petition No. F. No. 28 of 2022 under section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with section 7 (1)(b) of the Family Courts Act for declaration of status. It appears that the parties have arrived at amicable settlement voluntarily.

7. In the instant case, in terms of provisions of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, all the questions about the property, marriage, dissolution of marriage including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be considered as per the provisions of Muslim Personal Law (Shariat). It further appears from the bare reading of section 7 of Family Courts Act, 1984, which prescribes jurisdiction, in terms of section 7(1), Explanation (a) and (b), suit for a declaration as to the validity of a marriage or as to the matrimonial status of any person can also be a subject matter before the Family Court. 

8. It thus appears that the learned Judge of the Family Court has rightly applied the provisions of Muslim Personal Law (Shariat) Application Act, 1937 to the parties before us and accordingly declared the status of marriage as no more in existence by mutual consent.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 166 of 2022

Decided On: 29.03.2022

 Shaikh Taslim Shaikh Hakim  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.K. Jadhav and Sandip Kumar Chandrabhan More, JJ.

Citation: MANU/MH/1389/2022

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Questions and answers on law (Part 53)

 Q 1 :- What is Dying declaration?

Ans:- A dying declaration is a statement made by a dying person as to cause of his death or as to any of the circumstances of the transaction which resulted in his death when the cause of his death is in question.

https://www.lawweb.in/2018/08/notes-on-dying-declaration.html

Q 2 :- What are conditions for conviction on circumstantial evidence?

Ans:- A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. 

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

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Questions and answers on law (Part 45)

 Q 1:- In sessions triable case, one of the accused is juvenile. What order is to be passed to send him before Juvenile Justice Board?

Ans:- The court should follow procedure laid down by Supreme court in the case of Rishipal Singh Solanki v. State of Uttar Pradesh.

"The following questions arise for consideration:

(i) What is the procedure to be followed when a person claims juvenility in a regular court where he got arrayed as an accused?

(ii) What is the mode of proof in the matter of juvenility and the burden is upon whom?

(iii) Once it is found that the claim of juvenility in the affirmative, what should be the procedure to be followed?

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Whether the court can pass decree for judicial separation in petition for divorce by mutual consent?

 The provisions contained in Section 13-B of the Act, 1955 does

not provide for existence of a ground like the ones contained in

Section 13 for grant of divorce by mutual consent. There need

not be a serious dispute between a married couple for seeking

a divorce by mutual consent. It may happen in a given case that

there is no quarrel or dispute between the couple but yet their

actions and behaviour are not compatible with each other for

living a happy and peaceful married life, therefore, they may

seek divorce by mutual consent. If an application is otherwise

duly constituted and properly presented before the Court, it is

not for the Court to search for a ground or a reason, which has

compelled the parties to seek divorce by mutual consent.

11.Having regard to the fact that the parties presented the

application under Section 13-B by appearing before the trial

Court on 13.3.2018 and thereafter, again appeared on 7.4.2018,

27.10.2018, 4.12.2018 and 12.12.2018, the trial Court should

have passed the decree of divorce by mutual consent instead

of decree for judicial separation. {Para 10}

HIGH COURT OF CHHATTISGARH, BILASPUR

FAM No. 153 of 2019

 Smt. Sandhya Sen Vs Sanjay Sen 

DB.: Hon'ble Mr. Justice Prashant Kumar Mishra

Hon'ble Mr. Justice N.K. Chandravanshi

Order On Board by Prashant Kumar Mishra , J.

Dated: 6/4/2021

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Under which circumstances court can waive six months for a grant of divorce by mutual consent?

Solitary, question that emanates for consideration in this Petition is; Whether the minimum period of six months stipulated under Section 13-B(2) of the Hindu Marriage Act, 1955 (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? {Para 3}

 The learned trial Court relied on the judgment of the Hon'ble Apex Court in the case of Amardeep Singh v. Harveen Kaur reported in (2017) 8 SCC 746 : AIR 2017 SC 4417. The Hon'ble Apex Court in the cited judgment said that, where Court dealing with the matter, if a case is made out to waive statutory period under Section 13-B(2), it can do so after considering the following:

“(i) statutory period of six months specified S.13-B(2), in addition to statutory period of one year under S. 13-B(1) of separation of parties is already over before first motion itself;

(ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA, Rule 3, CPC/S. 23(2) of the Act/S.9 of Family Courts Act to reunite parties have failed and there is no likelihood of success in that direction by any further efforts;

(iii) parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

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

6. As stated above, the learned trial Judge declined to waive the cooling period for non-fulfillment of condition no. (ii), reproduced hereinabove.

7. The parties to the petition, have filed an application, duly verified by them, to state, that the parties were referred to mediation by this Court vide order dated 6th April, 2021. Accordingly, both and their respective lawyers had appeared before the Mediator and after mediation parties resided to get separated. The Paragraph No. 3 of the application suggests that the parties have entered and executed the consent terms, which were placed on record of Hindu Marriage Petition No. 17/2021.

8. In the case of Amardeep (supra), the Hon'ble Apex Court has held that the period mentioned in Section 13-B(2) is mandatory but directory and therefore in exercise of the discretion in the facts and circumstances of the case, in my opinion, there is no possibility of parties resuming cohabitation.

9. In consideration of the facts aforesaid, statutory period, contemplated under Section 13-B(2) of the Hindu Marriage Act, is waived.

In the High Court of Bombay(Aurangabad Bench)

(Before Sandeep K. Shinde, J.)

Pritam Vijaykumar Dargad Vs  Sujata Pritam Dargad 

Writ Petition No. 5822/2021

Decided on July 3, 2021

Citation: 2021 SCC OnLine Bom 983

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Whether one party can withdraw consent in divorce by mutual consent if another party has performed its obligation?

Following the judgment in Prakash Alumal

Kalandari (supra),we hold that once the parties

agree to file a joint petition, pursuant to an

agreement/compromise in pending proceedings, then

the parties are estopped from resiling from the

agreement. Therefore, the unilateral withdrawal of

consent by the respondent, especially after the

appellant has performed his part of the terms in the

memorandum of agreement, is only a sharp practice

which cannot be permitted or tolerated for a moment

as it would shatter the faith of the litigants in the

justice delivery system and make a mockery of

alternative dispute resolution mechanism.

25. We are of the definite opinion that the

unilateral withdrawal of consent by the respondent is

unsustainable in law and the Family Court erred by

allowing the applications filed by the respondent and

dismissing the original petition.

 KERALA HIGH COURT

Mat.Appeal.No.1066 OF 2017

Dated this the 5th day of February 2021

C.S.Dias,J.

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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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Whether wife can give up right to daughter to get maintenance?

Before we part with, we must also express our reservation
insofar as Term No.6 is concerned, which was incorporated in the
order on 08.11.2017 by the Principal Judge, Family Court,
Aurangabad. It was certainly open to the wife to give up any claim
so far as maintenance or permanent alimony or stridhan but she
could not have given up the rights which vest in the daughter
insofar as maintenance and other issues are concerned.

We, therefore, exercising our powers under Article 142 of the
Constitution of India, set-aside Clause (6) of the Consent Terms.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4031-4032 OF 2019

GANESH  Vs  SUDHIRKUMAR SHRIVASTAVA

Dated:APRIL 22, 2019

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Whether petition for divorce by mutual consent can be presented through power of attorney?

 In view of the aforesaid circumstances, whether the issue involved in the present case was at a more preliminary level i.e. at the stage of filing of the petition through a Power of Attorney holder, it can be seen that there is no legal lacunae in filing of the petition through a registered Power of Attorney, and the said petition needs to be accepted by setting aside the impugned order by the Family Court. Further, in the light of the said legal position, Family Court will not insist upon the presence of the parties before the Court and would arrange for the consent terms to be recorded either through skype or adopting any other technology and the proceedings contemplated under Section 13-B of the Hindu Marriage Act in the time schedule specified therein.

IN THE HIGH COURT OF BOMBAY

Writ Petition St. No. 1788 of 2018

Decided On: 06.04.2018

Harshada Bharat Deshmukh Vs.  Bharat Appasaheb Deshmukh

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: AIR 2018 Bom 148,2019(1) MHLJ 767

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Whether one party to divorce by mutual consent can withdraw his consent for divorce?

Adverting to the above principles of law it cannot be said that there was any legal bar for the petitioner to withdraw his consent as recorded in the pursis when the pursis referred that "both the parties have agreed to take divorce by consent." In any event if at all the parties were to maintain their consent for divorce as stated in the pursis, then the requirement of law was that the parties, would present an appropriate application by complying necessary requirements provided by Section 28 of the Special Marriage Act and seek a decree of divorce by mutual consent. However, before such an application/petition could be presented, the petitioner intended to withdraw his consent by the application on which the impugned order is passed. In my opinion, considering the aforesaid clear position in law there was no legal impediment for the petitioner to withdraw his consent as recorded in the pursis. The petitioner having withdrawn his consent, the necessary consequence would be that the family Court would be required to proceed and adjudicate the petition on the issue of divorce on all the grounds which are available to the parties. Thus, considering the requirement of law it was not proper and appropriate for the family Court to reject the application of the petitioner to withdraw the joint pursis dated 25 July 2015. The impugned order is manifestly illegal.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 12862 and 12863 of 2017

Decided On: 22.01.2018

 Vishal Nitinkumar Kondhia Vs. Jahnvi Vishal Kondhia

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NOTES ON HINDU MARRIAGE ACT 1955

S 3. Definition:-

c) full blood and half blood- Two persons are said to be related to each other by full blood when they are descended from a common father by the same wife, and by half blood when they are descended from a common father but by different wives;

d) uterine blood -Two persons are said to be related to each other by uterine blood, when they descended from a common mother but by different husbands;

f) Sapinda relationship with reference to any person extends as far as third generation inclusive in the line of ascent through mother and fifth generation inclusive in the line of ascent through father,the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

Read important judgments on Hindu Marriage Act: Click here

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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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When decree for divorce by mutual consent is liable to be set aside?

 We have also gone through the Lower Court Record. The record shows
that the petition under Section 13-B of the Act was filed by the parties on
10.11.2006. There was some amendment in the date of marriage and the suit
was admitted on 30.11.2006 and it was fixed to be listed after six months on
14.7.2007. There is no order preponing the date, but the suit has been allowed by
dissolving the marriage between the parties on 16.5.2007, which is before the
expiry of the period of six months from the date of the amendment made in the5
petition, on which date, the case was admitted. The Lower Court Record also
shows that on 10.11.2006, both the applicants had filed affidavits in support of
the petition and on the back of the same affidavit on 15.5.2007, their statements
were recorded by the Court below stating that they had filed the petition out of
their freewill and they want their marriage to be dissolved by divorce and on that
basis only, the petition under Section 13-B of the Hindu Marriage Act has been
allowed by the Court below. In other words, the record clearly shows that the
Court below had not taken any step to satisfy itself after hearing the parties and
after making any enquiry, about the solemnization of marriage between the
parties and the truthfulness of the averments in the petition, nor the Court below
had taken any effort to satisfy itself that the consent of the parties had not been
obtained by force, fraud, or undue influence, as required under Section
23(1)(bb) of the Hindu Marriage Act. The Court below had not taken any efforts
for assisting or pursuing the parties in arriving at a settlement in respect of their
dispute, which is the mandatory requirement, both under Section 9 of the Family
Courts Act, as also under Order XXXII-A Rule 3 of the Code of Civil Procedure.
15. In the present case, we find that the Court below has ignored all these
mandatory provisions of law while passing the decree of divorce by mutual
consent. In our considered view, the impugned order passed by the learned
Principal Judge, Family Court, Ranchi, suffers from inherent illegality and the
same cannot be sustained in the eyes of the law.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
 First Appeal No. 198 of 2008

Seema Pathak .
 V
Chotelal Pandey .
PRESENT :  MR. JUSTICE H. C. MISHRA
 MR. JUSTICE Dr. S.N. PATHAK
Citation: AIR 2017 Jharkhand 59

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Whether court can grant divorce by mutual consent if wife withdraws her consent?

The Court has all rights during avizandum to make an enquiry
and record its satisfaction on any petition or objection filed interregnum, by
any of the parties to the proceeding before pronouncement of the judgment.
The Hon’ble Supreme Court in the case of Smt. Sureshta Devi –v- Om
Prakash, reported in AIR 1992 SC 1904, has categorically held at
paragraph-13 as follows:
“13. From the analysis of the Section, it will be apparent that the
filing of the petition with mutual consent does not authorise the
court to make a decree for divorce. There is a period of waiting
from 6 to 18 months. This interregnum was obviously intended to
give time and opportunity to the parties to reflect on their move
and seek advice from relations and friends. In this transitional
period one of the parties may have a second thought and change
the mind not to proceed with the petition. The spouse may not be
party to the joint motion under sub-section (2). There is nothing
in the Section which prevents such course. The Section does not
provide that if there is a change of mind it should not be by one
party alone, but by both. The High Courts of Bombay and Delhi
have proceeded on the ground that the crucial time for giving
mutual consent for divorce is the time of filing the petition and
not the time when they subsequently move for divorce decree.
This approach appears to be untenable. At the time of the
petition by mutual consent, the parties are not unaware that
their petition does not by itself snap marital ties. They know that
they have to take a further step to snap marital ties. Sub- section
(2) of Section 13-B is clear on this point. It provides that "on the
motion of both the parties .... if the petition is not withdrawn in
the meantime, the Court shall...... pass a decree of divorce..”
What is significant in this provision is that there should also
be mutual consent when they move the court with a
request to pass a decree of divorce. Secondly, the Court shall be
satisfied about the bonafides and the consent of the6
parties. If there is no mutual consent at the time of the enquiry,
the court gets no jurisdiction to make a decree for divorce. If the
view is otherwise, the Court could make an enquiry and pass a
divorce decree even at the instance of one of the parties and
against the consent of the other. Such a decree cannot be
regarded as decree by mutual consent.”
Further, it has been held therein that the consent must continue
to decree nisi and must be a valid consent when the case is heard. Thus,
the consent given by the parties in the petition under Section 13-B of the
Act, 1955 must remain alive till the judgment is pronounced. If, at any
stage interregnum, any of the parties resiles from the consent so given, then
a decree under Section 13-B of the Act, 1955 cannot be passed.
11. In the case at hand, the respondent (wife) resiled from her
consent given in the petition under Section 13-B of the Act, 1955 on the
ground that she had not received the permanent alimony as agreed upon
between the parties. That, in our considered view, is relevant to be
considered. Thus, we find no infirmity or illegality in the impugned order.
 HIGH COURT OF ORISSA: CUTTACK.
 MATA NO. 8 OF 2016

Sri Pravakar Muduli 
 V
Smt.Satyabhama Muduli 
 Date of Judgment :16.09.2016

PRESENT:
  SHRI JUSTICE VINOD PRASAD
AND
 SHRI JUSTICE K.R. MOHAPATRA
Citation: AIR 2017(NOC) 4 Orissa

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Whether court can waive six months time in petition for divorce by mutual consent?

This petition is filed jointly by both the husband and the
wife.  The marriage between them was solemnized on 30­4­2012,
and both of them are residing separately from 2­5­2014.   Both
were blessed with two daughters, who are minors.  The petition
for divorce by mutual consent was filed on 29­11­2016.  Both the
daughters are residing with the petitioner No.1/husband from
13­10­2015.  The terms and conditions are agreed between the
parties, which are stated in the petition in question.
4. The Division Bench of this Court has taken a view in
paras 10 and 11 of the decision in the case of  Mittal Remesh
Panchal and another v. Nil, reported in 2014(3) Mh.L.J. 755, as
under :
“10. The statutory period of six months provided under
section 13­B(2) has been provided with a specific intent
that the possibility of last minute reconciliation can be
worked out in such matters.  In dispensation of justice, the
Courts are expected to do the justice between the parties by
overcoming the technical difficulties, coming in the way of
imparting justice.   The waiver of statutory period of six
months though not specifically provided but same can be

read in provisions as the main object of provision is to
libralize divorce.  The provision cannot be read in rigidity
so as to make the provision ineffective and meaningless.
The period of six months is nothing but period provided
with a view to enable parties to reconsider their decision
and   instead   of   dissolving   their   marriage   resolve   their
differences.   It was never the intention of the legislature
that such period is to be observed irrespective of the facts of
the   case   wherein   the   marriage   has   been   irretrievably
broken and there are no chances of reconciliation between
the parties or it would be futile exercise to wait for six
months.”
“11. While legislating the law, it is not possible for
legislature to foresee all possible circumstances, which may
arise in future.   In order to overcome such situation in
Code   of   Criminal   Procedure   as   well   as   Code   of   Civil
Procedure, the inherent powers have been conferred upon
the Court of law by making specific provision to that effect
in both the enactments.   Section 151 of Civil Procedure
Code provides inherent powers in Court to overcome the
situation   which   was   not   visualized   by   the   legislature.
Section 151 provides inherent powers in Courts to make
such orders as may be necessary to meet the ends of justice
or to prevent abuse of process of law.  Thus in any peculiar

or extraordinary situation where the procedural law are
inadequate   to   address   such   problem,   the   recourse   of
inherent powers under section 151 of the Civil Procedure
Code can always be resorted by Courts of law.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.1930 of 2017
 Nitin s/o Sudhakar Zaparde V Nil. 

Coram : R.K. Deshpande, J.
    Dated  : 7th April, 2017
Citation: 2017(3) ALLMR 374

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Whether petition for Divorce can be converted in to petition for Divorce by mutual consent?

A bare perusal of the application for amendment under Order 6, Rule 17, C. P.C. as also of the petition under Section 13-B(2) of the Act shows that the agreement between the parties to separate as also the terms with regard to alimony. Maintenance, custody of the child and disposal of property were negotiated and settled only during the pendency of the divorce petition. These were obviously subsequent events. It is now well established by a decision of a Division Bench of this Court in the case of Jawaharlal Mamtani v. Bhagchand Motumal Mamtani, that an amendment to take into consideration subsequent events would necessarily be effective from a future date and not the suit. In view of the peculiar circumstances of the present case the subsequent events which occurred during the tendency of the proceedings, the nature thereof, as also the real intention of the parties expressed in the two applications, the trial Court ought to have allowed the amendment prospectively with effect from the date when the first impugned order was made. Therefore, the order dated 5th of September 1989 is hereby modified so as to allow amendment of the divorce petition to convert it into one for divorce by mutual consent under sub-section (1) of Section 13-B of the Act with effect from the date of the order.

Delhi High Court

Dhanjit Vadra vs Smt. Beena Vadra on 30 January, 1990

Equivalent citations: AIR 1990 Delhi 146, 1990 (18) DRJ 199, 1990 RLR 167

Bench: A B Saharya

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