Family courts must waive cooling off period if conditions met: HC

The Bombay High Court ruled that family courts can waive the six-month "cooling off" period for mutual consent divorces if specific conditions are met.

MUMBAI: In an important ruling, the Bombay high court has held that family courts must waive the “cooling off” period of six months, if the parties fulfil requirements of granting divorce by mutual consent, efforts of mediation and conciliation have failed, and they have settled issues like alimony and custody of their children, if any.

Family courts must waive cooling off period if conditions met: HC

A single judge bench of justice Gauri Godse said the Family Courts must keep in mind that the waiting or cooling off period contemplated under Section 13B (2) of Hindu Marriage Act, 1955, was directory and not mandatory, and the waiting period only prolongs the agony of the parties.

The bench added that whenever applications are filed for waiver of the cooling off period, the family courts must ascertain that the conditions required under Section 13B - the parties were residing separately for at least a year, no conciliation was possible, and they have settled major issues like alimony and custody of children – are fulfilled. “Once the concerned (Family Court) judge is satisfied with regard to aforesaid aspects, the learned judge must exercise discretion to waive the waiting period,” the court said.

The court was hearing a joint petition filed by a 31-year-old Andheri resident and her Dubai-based estranged husband. The couple had tied the knot in June 2021, but soon cracks started developing in their relationship and the spouses started residing separately from May 5, 2023. After staying separate for over a year, they decided to apply for divorce by mutual consent, as provided under Section 13B of the Hindu Marriage Act, 1955, and on June 19, 2024, filed a joint divorce petition.

Along with their petition, the couple also filed a plea seeking waiver of the cooling off period of six months, as provided under Section 13B of the Hindu Marriage Act. The section prohibits the Family Courts/District Courts from granting decrees of divorce by mutual consent before expiry of six months of filing the joint petition.

The Family Court at Bandra on August 26, 2024, however, did not consider their request for waiver and instead referred them to counselling and posted their joint petition for divorce by mutual consent for further consideration on November 6, 2024.

The couple then approached the high court, contending that the spouses decided to separate by mutual consent as they found themselves incompatible and impossible to live together and filed the petition for dissolution of their marriage after efforts made by their family members and friends to help them reconcile failed.

In this backdrop, justice Godse dissolved the marriage after interacting with the couple and ascertaining that they were well settled in their independent professions, and no reconciliation was possible. The court also noted the couple was in their thirties and there was no point in keeping the divorce petition pending as this was causing them mental agony.