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[Divorce By Mutual Consent] In View Of Woman's Pregnancy From Other Person, Bombay High Court Waives Cooling Off Period [Read Order]

Sparsh Upadhyay
31 Oct 2020 11:15 AM GMT
[Divorce By Mutual Consent] In View Of Womans Pregnancy From Other Person, Bombay High Court Waives Cooling Off Period [Read Order]
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The Bombay High Court on Monday (26th October) 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)...

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The Bombay High Court on Monday (26th October) 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.

Section 13B (2)

It may be noted that Section 13B(2) of the Hindu Marriage Act contains a bar to divorce being granted before six months of the time elapsing after filing of the divorce petition by mutual consent.

The said period 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

Notably, the Supreme Court in the case of Amardeep Singh vs. Harveen Kaur AIR 2017 SC 4417 has held 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.

The matter before the Court

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 period, and therefore, they moved High Court.

Submissions put forth

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.

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".
Case-title - Kovelamudi Kanika Dhillon @ Kanika Dhillon v. Kovelamudi Surya Prakash Rao @ Prakash Kovelamudi [WP (ST) NO.93737 OF 2020]

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