Mutual Divorce: Family Court Can't Reject Application To Waive Cooling Off Period In Mechanical Manner, Says Allahabad High Court

The Allahabad High Court has held that the family court ought not to reject an application filed for waving of the statutory six-month cooling off period in divorce proceedings under Section 13B(2) of the Hindu Marriage Act, 1955 in a mechanical manner.

A bench comprising of Justices Saumitra Dayal Singh and Arun Kumar Singh Deshwal placed reliance on an earlier decision of the bench headed by Justice Singh in Vijay Agarwal v. Smt. Suchita Bansal, wherein the Court had held that the cooling off period under the provision is not mandatory. It is merely directory, and the discretion to waive the same rests with the Court.

The Court noted that the Family Court had made a ‘superficial observation’ regarding the parties living separately for more than a year. While rejecting the application, the Family Court had observed that the parties should have taken more time to reconsider their stand regarding their marriage. On the aforesaid observation of the Family Court, the High Court observed

“Other than a bald observation that the parties should have taken more time to reconsider their position and their stand qua their marriage, no fact discussion has emerged in the order as may allow this Court to reach a conclusion that the learned court below had found a firm opinion that it was not in the interest of the parties and in the interest of the justice to waive off the requirement of six months.”

While directing the Family Court to pass a fresh order, the Court observed that reliance placed on a judgment could not be rejected merely because the parties had not produced a copy of the judgment they were relying on.

Counsel for Appellant: Dharm Vir Jaiswal, Harsh Vikram

Case Citation: 2023 LiveLaw (AB) 339

Case Title: Amit Jaiswal v. Dr. Pankhuri Agarwal @ Dr. Pankhuri Jaiswal [FIRST APPEAL No. - 1033 of 2023]

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