The Bombay High Court allowed a Joint plea for waiving the Cooling off period as specified under Section 13B of the Hindu Marriage Act and asked the family court to decide the divorce plea of a couple on an urgent basis.
The Bench of Justice Nitin W. Sambre waived the statutory period under Section 13B of the Hindu Marriage Act on the ground that the Woman (Wife) is pregnant from some other person, whom she wanted to marry soon.
The said cooling off period of six months has been laid down to enable the parties to have a rethink, so that the court grants divorce by mutual consent only if there is no chance for reconciliation
Court Background
Parties to the Petition (Wife-Husband), who got married on 15th August, 2014 presented a joint Petition before the Family Court below for grant of divorce by mutual consent pursuant to the provisions of Section 13B of the Hindu Marriage Act, 1955.It was submitted by both of them (Wife-Husband) that they are staying separately since December 2018 and are independently leading their lives.
They submitted that they are unable to live together and so they have mutually agreed to end the marriage and as such, proceedings under Section 13B of the Hindu Marriage Act came to be initiated on 4th August, 2020.
The said proceedings being Petition No.F-1023 of 2020 initiated before the Family Court, Bandra, was accompanied with the application for waiving statutory period provided under Section 13B(2) of the Hindu Marriage Act, 1955 (which provides for the six-month cooling off period).
However, the family court rejected the joint application for waiving statutory cooling off period, and therefore, they moved High Court.
Submissions
The Counsel for the Petitioner (Wife) invited the attention of the Court to the specific pleadings that the Petitioner is carrying the pregnancy from another person with whom she intends to settle by performing marriage and that being so, there is urgency in the matter.
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It was further agreed between the parties that the Respondent (Husband) shall give his residential house to the Petitioner on such terms as are settled in between them.
The learned Counsel for the Respondent (Husband) consented for the submissions made by the learned Counsel for the Petitioner and submitted that he was equally supporting the case of the Petitioner for waiving the statutory period.
Court’s Observations
The High Court relied on the Apex Court’s ruling in the case of Amardeep Singh vs. Harveen Kaur AIR 2017 SC 4417, wherein it was stated 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 the child or any other pending issues between the parties; iv) the waiting period will only prolong their agony.”
In this context, the Bench of Justice Nitin W. Sambre opined,
“It will be appropriate in the 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.”
The Court further said that “let the Family Court decide the application for divorce as expeditiously as possible and if required by directing parties to attend the Family Court Proceedings physically or through video conferencing as it deems fit in the facts and circumstances of the case“.
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