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'Parties Are Educated & Aware Of Their Rights': Rajasthan High Court Waives 6 Months Cooling Off Period For Divorce By Mutual Consent

ANIRUDH VIJAY
18 Jan 2022 8:45 AM GMT
Parties Are Educated & Aware Of Their Rights: Rajasthan High Court Waives 6 Months Cooling Off Period For Divorce By Mutual Consent
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The Rajasthan High Court has allowed a joint application filed by the petitioner-wife and the respondent-husband for waiver of six months cooling off period prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 for divorce by mutual consent. Justice Dinesh Mehta, observed,"In light of the facts and circumstances of the case, particularly the fact that the parties...

The Rajasthan High Court has allowed a joint application filed by the petitioner-wife and the respondent-husband for waiver of six months cooling off period prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 for divorce by mutual consent.

Justice Dinesh Mehta, observed,

"In light of the facts and circumstances of the case, particularly the fact that the parties are sufficiently educated and are aware of their rights...as they have mutually decided to end their matrimony finding no hope/chance of reconciliation, I am of the opinion that their application for waiver of the statutory period of six months specified under Section 13-B(2) of the Act of 1955 deserves acceptance."

The parties had approached the court after being aggrieved with the order passed by the Family Court, Bhilwara, which on 16 Dec, 2021 dismissed the aforesaid prayer of the parties.

Essentially, marriage of the parties was solemnised as per Hindu customs on 25.11.2003 in Mandalgarh, Bhilwara. Soon after the marriage, their relations became strained and since the last four years, both have been residing separately. Thereafter, best efforts were made to restore conjugal relations and in spite of regular counselling by their near relatives, the matrimonial dispute between them could not be settled.

As a result, parties jointly filed a divorce application in Family Court by mutual consent, which in turn registered the said application and fixed the next date as 20 Jan, 2022 for counselling.

The counsels for the parties submitted that the decision by the parties to end their marriage has not been taken in a hurry and reconciliation between the parties is highly unlikely.

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 High Court opined that the petition of the parties deserves to be accepted as the parties are sufficiently educated and are aware of their rights – the respondent (husband) is running a shop also. In this regard, the court also observes that parties have mutually decided to end their matrimonial relation after finding no hope/chance of reconciliation.

The order was issued by the court in exercise of its extraordinary powers available by virtue of Article 226 of the Constitution of India.

The court relied on the conditions set out in the case of Amardeep Singh v. Harveen Kaurwhere the Apex Court held that the period under Section 13-B(2) is not mandatory but directory. The Apex Court added that 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 where there are chances of alternative rehabilitation.

The court directed the parties to appear before Family Court on 20 Jan, 2022, whereafter the concerned Family Court will pass a decree of divorce in accordance with law.

Case Title: Sheela Dhobi v. Satish

Citation: 2022 LiveLaw (Raj) 19

Click Here To Read/Download Order


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