However a good case if someone wishes to #WaiveSixMonths, #WaiveCoolingPeriod for #MutualConsent #divorce
Madhya Pradesh High Court
Smt. Iti vs Sharad on 8 December, 2016
(SMT. ITI Vs SHARAD)
Shri Ritesh Inani, learned counsel for the petitioner.
Heard on the question of admission : Admit.
Issue notice to the respondent.
Shri Padbhanabh Saxena accepts notice on behalf of the
They are heard.
The present petition is preferred against the order dated
05/12/2016 passed by the learned Family Court, Indore in
HMA case No.1536/2016, whereby the learned Judge has
dismissed the joint application filed by the parties for
waiving off the cooling off period of six months provided
under Section 13-b (2) of the Hindu Marriage Act, 1995.
The Division Bench of this court by order dated 29.9.2016
passed in W.P. No.6541/2016, considered this question
and remanded the matter to the learned trial court to
decide a fresh in accordance with law. Order dated
29.9.2016 passed in W.P. No.6541/2016 reads as under :-
â��Petitioner has preferred this petition with
joint affidavit of himself as well as of
respondent being aggrieved by the order
dated 15.9.2016 passed in HMA Case
No.1165/2016 by which IInd Additional
Principal Judge, Family Court, Indore has
dismissed their joint application for waiving
off cooling period of six months as provided
under section 13-B(2) of the Hindu Marriage
2. Facts of the case are as under :-
Marriage of petitioner and respondent was solemnized in the year 2002 under the Hindu customs and rites. Immediately after six months of the marriage differences have started between them and most of the time they remained separately. Out of their marriage one child Samyak was born in the year 2011 who is presently residing with respondent/wife. Due to increase of differences between them they finally started living separately since last 2-3 years. Since the efforts of reconciliation made by the relatives and members of the society have failed they decided to seek divorce by way of mutual consent and accordingly they moved an application under section 13-B of the Hindu Marriage Act before the Family Court, Indore on 6.5.2016. Before entertaining the said application they were directed to appear before the Mediator, however, the mediation has failed which is evident from the report dated 14.10.2016. Since the petitioner and respondent has made up mind to seek divorce, therefore, they moved an application before the Family Court for waiving off the cooling period of six months. Vide impugned order dated 15.09.2016 learned Family Judge has rejected the application on the ground that the Family Court has no jurisdiction to waive off the cooling period of six months, hence the present petition before this Court.
3. Shri Ajay Bagadia, learned counsel for the petitioner submits that when parties have decided to take divorce by way of mutual consent then in view of the law laid down in the case of Nikhil Kumar v. Rupali Kumar reported in AIR 2016 SC 2163, in the case of Virendra Singh Rajak vs. Seema Rajak reported in 2015 (3) MPLJ 188 and in the case of Deepak (Dr.) v. Smt.Tanuja reported in 2003 (2) JLJ 121 the cooling period is liable to be waived off and the learned Family Court be directed to pass the divorce decree.
4. The aforesaid prayer is not opposed by the respondent who is appearing in person as they jointly filed this present petition. That both petitioner as well as respondent appeared before this court and jointly submitted that they are not able to live together and they mutually agreed that the marriage should be dissolved forthwith and the consent has not been obtained by force or fraud or undue influence. As per the terms and conditions of the divorce petitioner/husband has agreed to give Rs.60 lacs as permanent alimony and in addition to this Rs.15 lacs would be paid in the name of his son Samyak. Petitioner as well as respondent are well educated and belong to the respected families and there is no other dispute between them.
5. The approach of Apex Court in the case of Yogendra Yadav and others vs.State of Jharkhand and another reported in (2014) 9 SCC 653 is that in the cases of compromise petition filed by the parties, the criminal proceedings should be quashed to secure the ends of justice to avoid wastage of time and energy and there is no use of keeping the criminal trial pending even in non- compoundable cases.
6. Now we have to consider when Supreme Court has waived off the period of six months in exercise of powers under Article 142 of the Constitution of India whether High Court can also waive off the cooling period of six months. In pending first appeal this Court has waived off cooling period and granted the decree of divorce by allowing joint application filed u/s 13-B of the Hindu Marriage Act. The question is whether in writ petition can we pass decree of divorce directly or we may direct the Family Court to pass the decree of divorce by waiving off cooling period of six months. To opt second option, we have to consider whether period of six months is mandatory or directory in nature before passing decree of divorce by mutual consent.
7. The Andhra Pradesh High Court in the case of K.Omprakash v. K.Nalini reported in AIR 1986 AP 167 held as under:
10. For all the above reasons, we are of the
opinion that S. 13-B(2)of the Hindu Marriage Act
should be read as directory only. S. 13-B(2), no
doubt cautions the Courts of its duty to fight
the last ditch battle to save the marriage; but
when the Court is fully satisfied, on the basis
of the proved facts, that in the interests of
justice of the society and the individuals
marriage tie should be put asunder immediately,
S. 13-B(2) does not impose any fetter on the
power of the Court to grant instant decree of
divorce. At any rate, we are clearly of the
opinion that the time-table fixed by S. 13-
B(2)does not apply to an appellate Court. The
great Telugu poet Vemana said that the broken
iron can be joined together, but not broken
hearts. Parties have been living apart for long
and their wedlock has now virtually become a
deadlock. Chances of reunion had completely faded
away. In these circumstances, we think it just
and proper to grant a decree of divorce
straightway. Accordingly we pass a decree of
divorce declaring the marriage between the
appellant and the respondent as dissolved with
8. The Kerala High Court in the case of Sreelatha v. Deepthy Kumar reported in AIR 1998 Kerala 97 held as under :-
5. We are of the view that this Court can act on
the Memo of Compromise filed before us as
indicative of a sane and sober thinking after
exploring all possible avenues, if any, for
bringing about a union to dissolve the marriage,
having failed. We have also verified from the
appellant- wife as also the respondent-husband in
the presence of their respective counsel in open
Court, who also have represented before us that
the Memorandum of Compromise has been filed after
great deliberations and consideration of the pros
and consinvolved in the matter. The terms and
conditions, subject to which the parties have
agreed to have the dissolution of their marriage
make it clear that each one of them has no
further subsisting claims over the other.
9. The Karnataka High Court in the case of Smt. Roopa Reddy v. Prabhakar Reddy reported in AIR 1994 Karnataka 12 held as under:
13. The next question is whether the requirement
under S. 13-B of the Hindu Marriage Act has to be
considered as mandatory or directory. The words
used in the Section shall have to be read in the
context in which the liberalized provision has
been made by the legislature enabling the
unwilling parties to seek divorce instantaneously
and thus to put an end to the untold misery. When
the intention of the Legislature in introducing
S. 13-B(2)is to liberalize and to unlock the
wedlock, the legislature has never intended the
period of 6 months mentioned in the Act shall be
strictly complied with. But, in spirit the
Section is directory in nature and it has been
incorporated to help 2 discordant spouse to get
quick separation and to lead their remaining life
without any agony. If S. 13- B(2)is read as
mandatory, the very purpose of liberalizing the
policy of decree of divorce by mutual consent
will be frustrated. Thus, S. 13- B(2), though it
is mandatory in form is directory in substance.
18. Marriage is an union of 2 hearts. Success of
married life depends on the edifice built with
the mutual trust, understanding,love, affection,
service and self sacrifice. Once this edifice is
shaken, happy married life will be shattered into
pieces. The result is one of misery and emotion.
Whether one accepts it or not liberalization in
the way of living of individuals and reformation
in age old customs and due to modernization and
understanding of individual rights and equal
status irrespective of sex it is natural for
either of the spouse to seek for dissolution.
Where the marriage tie has been broken, the Court
has to look to the interest of the parties and
the welfare of the children as paramount. When it
is impossible to live like husband and wife, any
compulsion to unite them will lead to social
evils and disturbance of mental peace and
disorder in the family life. However rigid social
fabric it is not the social system but the
persona] safety of the parties to the wedlock,
shall prevail. This should be the guiding
principle in view of S. 13B(1) of the Act. There
is complete destruction of the essence of
marriage between parties and it has reached the
stage of irretrievable breakdown.
19. In the background of the circumstances
narrated in the case,the request made by both
parties for divorce by mutual consent is the only
just and proper way to allow them to spend their
remaining period of life happily with contentment
instead of compelling them to lead a miserable
and emotional life without any constructive
10. The Madras High Court in the case of R. Venkatasubramanian vs. Ramya Ganesan in Civil Revision Petition (PD) No.2443 of 2016 held as under:
3. L e a r n e d counsel submits that
petitioner/husband filed H.M.O.P. No.314 of 2012
on the file of learned Subordinate Judge,
Poonamallee, seeking divorce. Both
petitioner/husband and respondent/wife have been
living separately over a period of four years and
hence, they have entered into a Memorandum of
Understanding and filed H.M.O.P.No.320 of 2016
seeking divorce by mutual consent. They have also
filed I.A.S.R. No.5814 of 2016 in H.M.O.P. No.320
of 2016 to waive the minimum waiting period of
six months after presentation of petition for
divorce by mutual consent. Learned counsel
submits that as per Section 13B(1)of the Hindu
Marriage Act, 1955, a petition for divorce by
mutual consent could be filed after completion of
one year of marriage. In the instant case, both
petitioner and respondent have not been living
together for the past four years and hence, they
have filed I.A.S.R. No.5814 of 2016 in H.M.O.P.
No.320 of 2016 seeking grant of waiver, which was
returned by the Court below. Hence, this revision
has been filed seeking a direction to learned
Subordinate Judge, Poonamallee, to take the case
in I.A.S.R. No.5814 of 2016 in H.M.O.P. No.320 of
2016 on file.
9. … Hence, the object of the cooling period
of six months is to-retrieve the difference of
opinion between the parties. But here, there is
no chance for reunion. Because already both the
parties are waiting for a long period and only in
the Mediation, the matter was settled. In such
circumstances, I am of the view, to render
complete justice to the parties, six months’
cooling period mentioned under Section 13-B(2)of
the Hindu Marriage Act is not a bar to grant
mutual consent immediately.
10. Further more, on considering the Agreement
entered by the parties before the Mediation and
on that basis only, Divorce Petition on mutual
consent has been filed, this Court is of the
opinion that six months’ cooling period under
Section 13-B(2)of the Hindu Marriage Act is
hereby dispensed with and the Principal Family
Court, Chennai, is directed to record the
evidence of both the parties and dispose of the
Petition filed under Section 13-B of the Hindu
Marriage Act in accordance with law.
11. That the Apex Court in the recent case of Nikhil Kumar vs. Rupali Kumar (supra) has considered the educational background of the appellant as well as respondent and considering the facts and circumstances of the case the cooling period was reduced and granted the decree of divorce under section 13-B of the Hindu Marriage Act. In the case of Virendra Singh Rajak vs. Seema Rajak (supra) this Court after considering various judgments of the Supreme Court has granted the decree of divorce by reducing the cooling period. In the case of Deepak v. Smt. Tanuja (supra) this Court has held that this Court as well as the trial Court at any stage of proceeding can grant decree by mutual consent if the conditions laid down in section 13-B and Section 23 of the Act are fulfilled by waiving off the period of six months. In the present case petitioner and respondent filed an application for mutual divorce on 6.9.2016. In the aforesaid cases the Supreme Court has granted the decree of divorce in exercise of powers under Article 142 of the Constitution of India. The High Court has also granted the decree of divorce under section 13-B in number of pending regular appeals under the provisions of the Hindu Marriage Act but here the petitioner has filed the writ petition challenging inter alia the order of the Family Court, therefore, in which we cannot directly grant the decree of divorce to the petitioner but instead of granting the decree of divorce we direct the petitioner as well as respondent to appear before the Family Court on 14.10.2016 which is already fixed for conciliation and the Family Court is directed to grant divorce decree to them under section 13-B of the Act by waiving off the cooling period of six months but after following other procedures as contemplated in said section.
12. With the aforesaid direction, writ petition is disposed off.
No order as to costs.â�� In view of the aforesaid, we direct the petitioner as well as respondent to appear before the Family Court on 09/01/2017, for conciliation and the Family Court is directed to grant divorce decree to them under section 13-B of the Act by waiving off the cooling period of six months but after following other procedures as contemplated in said Section. With the aforesaid direction, writ petition is disposed of. No order as to costs.
C.C. as per rules.
(P.K. JAISWAL) (VIRENDER SINGH)