Madhya Pradesh HC Waives Cooling Off Period In 'Mutual Consent' Divorce Case U/S 13B Hindu Marriage Act For Couple Living Separately Since 14 Months

It was the case of the petitioner that the petitioner and the respondent's marriage was solemnized as per the Hindu Marriage Act in 2020. The couple started living separately in 2021, after which they moved an application for divorce by mutual consent under Section 13B of the Act. Thereafter, the couple filed another application requesting the court to waive the cooling off period of six months as provided for by Section 13B (2) of the Act, which request was rejected by the Family Court, Indore citing the decision in Amardeep Singh v. Harveen Kaur, 2017 (8) SCC 746.

Amardeep Singh case prescribed 4 conditions: (i) couple has been living separately since 1.5 years; (ii) all efforts for mediation/conciliation to reunite the parties have failed; (iii) parties have genuinely settled their differences including alimony, custody of child or any other pending issues; and (iv) waiting period will only prolong their agony.

The petitioner submitted that he was due to leave India on a short notice and that since both the parties have already settled their disputes, the cooling off period should have been waived. The petitioner placed reliance on the Supreme Court decision in Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270.

The petitioner argued that the Family Court had erred in rejecting their application for waiver and had misinterpreted the decision in Amardeep Singh case. It was the petitioner's case that the Court in Amit Kumar case had interpreted the decision in Amardeep Singh case and had held that the conditions enumerated in Amardeep Singh case which must be satisfied before a court can waive the cooling off period were not mandatory and that the fulfilment of all the conditions was not required to waive the cooling off period. Accordingly, the petitioner pressed that the High Court could exercise its discretion taking into account the other circumstances as well, while deciding on the waiving of the cooling off period.

The single bench of Justice Subodh Abhyankar, passed an order setting aside the decision of the Principle Judge, Family Court, Indore and allowed the joint application moved by the parties for waiving the cooling off period of six months.

The Court placed reliance on the decision in Amit Kumar and observed that since both the parties had already been living separately for over 14 months, since no cases filed by the respondent-wife were pending against the petitioner-husband and since the wife had already received permanent alimony, the waiver of the cooling off period was well-founded in law.

Case Title: Vaibhav Pancholi v. Priya

Citation: 2022 LiveLaw (MP) 238

Coram: Justice Subodh Abhyankar