Source: Allahabad High Court

Why in News?

The bench of Justices Saumitra Dayal Singh and Arun Kumar Singh Deshwal observed that an application for waiving off cooling period can be rejected for interest of the parties and justice and not in mechanical manner.

• The Allahabad High Court gave this observation in the matter of Amit Jaiswal v. Dr. Pankhuri Agarwal.

Background

• The husband and wife presented a joint application for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 (HMA) which was rejected by the family court.
• Hence the parties filed an application praying the court to waive off the cooling period of six months to file the second motion petition.
• However, the application for waiving off the cooling period was also rejected by the family court.
• Hence the parties preferred an appeal before the Allahabad HC.

Court’s Observations

• The court held that the learned family court has rejected the joint application made by the parties, in a mechanical manner.
  • No application of mind has been made to the facts pleaded by the parties.
• The court relied upon the observation given in Vijay Agarwal v. Smt. Suchita Bansal (2023) 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.

Divorce with Mutual Consent

• Introduction:
  • Section 13B of HMA, deals exclusively with divorce by mutual consent.
  • This section was introduced as an amendment to the Act through Marriage Laws (Amendment) Act, 1976, recognizing that in certain situations, divorce could be a more humane and less acrimonious option.
• Conditions:
  • Under Sub-section 1 of Section 13B the couple must have lived separately for a continuous period of at least one year immediately preceding the presentation of the petition.
    • During this period, they should have remained apart, and there should be no cohabitation.
  • Both parties must agree to the divorce and file a joint petition before the appropriate court, expressing their mutual consent to dissolve the marriage.
    • This consent must be free and voluntary.
• Opportunity for Reassurance:
  • Before passing the decree of divorce for mutual consent the court attempts to conciliate or mediate the dispute between parties and provides a minimum cooling period of 6 months for reassurance of the party’s decision to take divorce.
• Passing of Decree:
  • If the petition is not withdrawn after all attempts by court and parties, the court shall pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
  • However, the court will pass the decree upon its satisfaction after hearing the parties and after making such an inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true.

Cooling Off Period

• The court imposes a six-month cooling off period from the date of filing the joint petition. During this time, the couple is encouraged to rethink their decision.
  • Sub-section 2 of Section 13B contains a period for a second motion which may not be before a minimum period of six months after the date of the presentation of the petition and not later than eighteen months.
• During this six-month period, the court often encourages or mandates counseling or mediation for the couple.
  • These sessions aim to help the spouses communicate, understand each other's concerns, and explore the possibility of resolving their differences.
• In certain exceptional cases, the court may consider waiving the cooling off period if it is convinced that the marriage has irretrievably broken down and there is no possibility of reconciliation.
• After the cooling-off period, the couple can file a second motion confirming their intention to proceed with the divorce.
  • If they still do not withdraw the joint petition for divorce, the court grants a decree of divorce, effectively ending the marriage.