E-Paper
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 in mutual consent divorces if all issues are settled.
The Bombay high court has held that family courts must waive the so-called cooling off period of six months in divorce cases involving mutual consent if all other issues between the couple have been settled -- a significant ruling that could accelerate divorce proceedings.
A single judge bench of justice Gauri Godse said family courts, the first port of call for divorce cases, must keep in mind that the waiting or cooling off period contemplated under Section 13B (2) the Hindu Marriage Act, 1955, is directional and not mandatory -- and that this waiting period may only serve to prolong 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 -- that the parties have been residing separately for at least a year, that no conciliation is possible, and that they have settled major issues such as alimony and custody of children -- are met. “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 added.
The court was hearing a joint petition filed by a 31-year-old Andheri resident and her estranged Dubai-based husband. The couple tied the knot in June 2021, but soon cracks started developing in their relationship and they started residing separately from May 5, 2023. After staying apart 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 family courts and district courts from granting decrees of divorce by mutual consent before expiry of six months of filing the joint petition.
The family court , Bandra on August 26, 2024 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 had decided to separate by mutual consent and filed the petition for dissolution of their marriage by mutual consent after efforts made by their family and friends at achieving a reconciliation failed.
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 that there was no point in keeping the divorce petition pending .
