Allahabad High Court Waives Cooling Off Period For Mutual Divorce; Says Courts Must Depart From Conservative Approach
The Allahabad High Court has set aside the order of the Family Court directing parties to mediation, instead of waiving the cooling off period after almost eight years of living separately. The Court held that with changing times, the Court should be mindful of the realities and depart from obsolete and conservative approach in matrimonial disputes.The bench comprising of Justices Saumitra...
The Allahabad High Court has set aside the order of the Family Court directing parties to mediation, instead of waiving the cooling off period after almost eight years of living separately. The Court held that with changing times, the Court should be mindful of the realities and depart from obsolete and conservative approach in matrimonial disputes.
The bench comprising of Justices Saumitra Dayal Singh and Arun Kumar Singh Deshwal held,
“In the context of matrimonial disputes arising in present times, the courts are required to stay tuned to the realities of life and depart from obsolete and conservative approach to such litigation. While preservation of marriage survives as a desired goal and all the courts must first examine if a troubled marriage may be made to work for the good of the parties involved, at the same time it essentially being a matter of personal choice, upon fair consensus reached by the parties to dissolve their marriage, parties may not be obstructed only to seek technical compliance of procedural safeguards.”
The Court observed that the safeguards provided in law are to be enforced in “deserving cases”. If there is doubt regarding the “genuineness or fairness of the consensus reached or if there survived any hope with either party that the marriage could be made to work”, the Family Court could have referred the matter to mediation, observed the Court.
In absence of any hope, especially when the dispute between the parties had reached the point where both were looking to start a new life, the Court held that the conduct of the Court below is “not conducive to the ends of justice”.
Married since 2009, issueless, the husband and wife lived separately since 2015. A joint application was filed for dissolution of marriage and waiving the cooling off period. The parties approached the High Court on grounds that the Family Court instead of waiving of the statutory cooling-off period, referred them to mediation and fixed date for the first motion petition and listed the second motion petition in December.
The Court noted that the second marriage of the estranged wife is to be solemnized next month. Accordingly, the Court observed that the parties filed for divorce of their own free will as the marriage does not survive, and the parties want to give their life a second chance. In light of this, the Court observed that
“No pedantic or mechanical approach may have been adopted to unnecessarily refer the matter to the mediation or to make the parties wait for cooling off period to come to an end before taking up the joint petition for consideration on merits. Blind faith in such procedure may only prolong the agony of the parties.”
While waiving the cooling off period, reliance was placed on earlier decision of a bench headed by Justice Singh in Vijay Agarwal v. Smt. Suchita Bansal, wherein the Court had held that the cooling off period as provided in Section 13B(2) of the Hindu Marriage Act, 1955 is not mandatory. It is merely directory, and discretion to waive the same rests with the Court.
The Court directed that the second motion application be filed by the parties within a week and directed the Family Court to decide the same within two weeks.
Case Title: Priti Yadav @ Pinki v. Ashwani Gwal [FIRST APPEAL DEFECTIVE No. - 294 of 2023]
Case Citation: 2023 LiveLaw (AB) 343
Counsel for Appellant: Shri Prakash Dwivedi