Mutual Divorce | Bar U/S 13-B Procedural, Will Not Affect Substantive Right Of Parties That Settle Amicably: Allahabad HC Waives Cooling-Off Period

The Allahabad High Court has recently waived off the cooling-off for a married couple as they had mutually filed for dissolution of marriage under Section 13-B of Hindu Marriage Act, after entering a Memorandum of Understanding amicably.

Court said the substantive right of the two parties that settle their conflict amicably must not be interfered with citing procedure.

A bench comprising Justices Attau Rahman Masoodi and Om Prakash Shukla observed,

“This Court may note that legitimacy or otherwise of an MOU arrived at between the parties out of their free will is not open to judicial scrutiny except on the ground of fraud. The very idea of settlement through mediation or amicable means runs and progresses through this realm of philosophy.”

Factual Background:

The Appellant, Eti Tyagi, and the Respondent, Prince Tyagi, had filed for dissolution of marriage under Section 13-B of Hindu Marriage Act due to irretrievable breakdown of marriage. Since the parties had been living separately for more than a year, an application for waiver of the cooling-off period was also filed. However, the Family Court rejected the said application based on the bar under Section 13-B of the Act.

High Court Verdict:

Regarding the 6 months cooling-off period provided under Section 13B(2) of the statute, the Court held that it is procedural in nature.

“The mandate of the statute remains procedural. The substantive right of the two parties to settle the conflict by an amicable settlement in a case where the settlement so arrived is free, the law must honour such a right. The amicable means of settlement serve the object of justice which the law fails to deliver between the parties at times giving rise to exceptional situations. This object of all amicable settlements is bound to be respected and recognized by the courts of law in all such cases where the MOU remains unquestionable and the parties have acted upon freely in the pursuit of Article 21 of the Constitution of India to live with dignity,” held the Court.

The Court relied on Amit Kumar Vs. Suman Beniwal wherein the Supreme Court held that institution of marriage is to be saved by preventing hasty dissolution of marriage. However, granted divorce since the separation had continued on account of irretrievable breakdown of marriage.

“The parties to a marriage if allowed to litigate would also not achieve the purpose of law and would thus damage the institution of marriage in equal measure. It is for this reason that an amicable settlement deserves to be recognized in law with promptitude.”

Accordingly, the Court waived the cooling-off period and directed that proceedings under Section 13-B of the Act be finalized within two weeks from date of filing of the certified copy of the order.

Case Title: Eti Tyagi vs. Prince Tyagi [FIRST APPEAL No. - 170 of 2023]

Case Citation: 2023 LiveLaw (AB) 297

Counsel for Appellant: Atul Dixit

Click Here To Read/Download Order