[Mutual Divorce] Detailed Enquiry Akin To Trial Not Required To Waive Cooling Off Period Under HMA: Punjab & Haryana High Court

The Punjab & Haryana High Court has made it clear that a detailed inquiry is not required to waive the cooling off period while dealing with an application under the Hindu Marriage Act for divorce by mutual settlement.

A division bench of Justice Sudhir Singh and Justice Sumeet Goel said, "The Court while, considering the prayer for waiving off the cooling off periods, ought to be satisfied that there exist requisite grounds to accord such permission and there is no concealment/misrepresentation on behalf of parties. The Court is required to satisfy itself in terms of Section 23 of the Act."

It further added that no detailed enquiry, as akin to a trial, is ordinarily required to be undertaken by the Court while considering such an application. The Court would be well within its discretion to look into the pleadings and affidavits presented before it for such evaluation.

These observations were made while hearing the plea against the order of a Family Court whereby application filed under Section 13-B of the Hindu Marriage Act, 1955 (HMA) for waiving off the statutory period of six months had been rejected. 

The parties were married in 2018 and thereafter started living separately since January 2020, due to temperamental issues. They filed for mutual divorce in August 2023.

The Family Court recorded that the requirement of Section 13B(1) of the Act have been satisfied as the parties have been living separately for a period of more than one year but however with regard to Section 13B(2) of the Act, the parties were required to move a second motion, in accordance with the time frame provided therein. Accordingly, the matter was adjourned to March, 2024.

In September, 2023 they jointly moved an application before the Family Court seeking waiving off the statutory period of six months under Section 13B(2) of the Act. The Family Court vide impugned order dismissed the application in view of the fact that the case of the appellants does not fall within the parameters fixed for waiving off the stipulated period of six months as mentioned under Section 13B(2) of the Act.

Considering the submissions, the Court noted that Section 13-B of HMA shows it is irenic in essence as compared to Section 13 of the Act which is based on fault proving philosophy. Hence provision of Section 13-B deserves to be interpreted and applied accordingly since it is aimed at bringing about a peaceful and mutually agreeable final solution to matrimonial discord.

The bench also summarised the following factors which needs to be considered for waiving the cooling off period under Section 13-B(2) of the Hindu Marriage Act, 1955,

(a) How long the parties have been married?

(b) How long they have been staying apart?

(c) Are there any other proceedings between the parties? If yes, what is the status of such proceedings and whether all such other proceedings are also being settled?

(d)Whether declining of such permission will prolong the agony of parties?

(e)Whether there is any misrepresentation or concealment of material facts by parties while seeking such permission?

(f) Whether there is any child born out of the wedlock? If yes, how the interest of child is being secured?

 (g) Whether there is any reasonable probability of reconciliation between parties?

(h) Age, educational qualification and economic position of the parties especially the wife?

The Court noted that the parties have also expressed their intention to remarry and both of them had stated that all the efforts to 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.36,00,000/- in lump sum in lieu of dowry articles, present, past and future maintenance to respondent-wife.

Adding that "there is no material on record to show that there is any concealment or misrepresentation by parties; no child is born out of the wedlock; the parties are educated; there are no chances of settlement/reconciliation between them," the Court said, "In such a scenario, it is pragmatic to waive off the statutory period of 06 months under Section 13-B(2) of the Act."

In the light of the above, the Court granted the relief.

Amandeep S. Rai, Advocate for the appellant-husband.

Mr. Avtar Singh Sandhu, Advocate for the respondent-wife.

Citation: 2024 LiveLaw (PH) 02

Case Title: X v. Y