Section 13B(2) Hindu Marriage Act | Six Months Cooling Period Directory, Not Mandatory: Madhya Pradesh High Court

The High Court of Madhya Pradesh, Gwalior Bench recently said that the requirement of cooling period of six months between filing and allowing of an application under Section 13B(2) of the Hindu Marriage Act is directory and not mandatory.

The Court was dealing with a petition whereby the parties were challenging an order passed by the family court, wherein their prayer for waving off the cooling period was rejected.

The couple had got married on February 16 in 2020 but on account of "irreconcilable differences" separated just 12 days after their marriage. After over one year of separation, the parties moved an application under Section 13B of the Act, seeking a decree of divorce by mutual consent.

Sub-section (2) of Section 13B of the Hindu Marriage Act provides that the Court shall pass a decree of divorce, declaring the marriage to be dissolved with effect from the date of the decree, on the motion of both the parties, made not earlier than six months after the date of presentation of the petition referred to in subsection (1) of Section 13B, but not later than 18 months after the said date, after making necessary enquiries, if the petition is not withdrawn in the meantime.

Their prayer for waving off the cooling period of six months was rejected by the family court last month on the ground that their case did not fall under the parameters set by the Apex Court in Amardeep Singh v. Harveen Kaur. Aggrieved, the parties moved the high court.

Analysing the legislative intent behind the Hindu Marriage Act, Justice M.R. Phadke observed that Section 13B enables "the parties to a marriage" to avoid or shorten unnecessary acrimonious litigation, where the marriage may have irretrievably broken down and both the spouses may have mutually decided to part.

The court further noted that the six months cooling period under Section 13B(2) was laid down to give them a chance to resolve their differences and save their marriage, if they want to do so.

"Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filing of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage. Thus, if the marriage has broken down irretrievably, the spouses have been living apart for a long time, but not been able to reconcile their differences and have mutually decided to part, it is better to end the marriage, to enable both the spouses to move on with the life".

Citing the relevant portions of the Amardeep Singh case, the Court opined that the family court had misconstrued the observations of the Supreme Court. The Court noted that the period mentioned in the Section 13-B(2) is not mandatory but directory.

Considering the facts and circumstances of the case, the Court observed that the family court was not justified in rejecting the prayer of the parties to waive off the 6 months waiting period.

"The parties had only lived together for a period of 12 days and as such the marriage was a nonstarter. Both of them had stated that all the efforts of reconciliation had failed and they are unwilling to live together as husband and wife, they had even settled the amount of permanent alimony, which is Rs. One crore (Demand drafts No. 056621 and 056622 amounting to Rs.50 Lakhs each deposited in the Family Court) and only because 9 days fell short of completing the period of 1 1⁄2 years before the first motion, that too on the date of filing of the consent divorce petition i.e. on 22/08/2022, which period is now over, the learned Family Court was not justified in rejecting the application for waiving off the period of six months as provided under section 13B (2) of the Act and thus no useful purpose would be served by making the parties to wait."

With the aforesaid observations, the Court set aside the impugned order and further directed the family court to decide the matter afresh by exercising its discretion in the background of the facts and circumstances of the case. Accordingly, the petition was allowed and disposed of.

Case Title: SMT. VANDANA GOYAL VERSUS PRASHANT GOYAL

Case citation: 2022 LiveLaw (MP) 234

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