Mutual Consent Divorce: Gujarat HC Refuses To Waive Off 6 Months Cooling Period For Couple Who Lived Together For 12 Days

The Gujarat High Court recently upheld an order of the family court refusing to waive off the statutory 6 months cooling period in a plea by a couple seeking a mutual divorce who lived with each other for a period of 12 days only.

The Bench of Justice A. C. Joshi observed that the family court rightly passed the order refusing to waive off the cooling period therefore, there was no requirement to interfere in the impugned order of the Court.

It may be noted that in divorce cases, a six-month waiting period/cooling-off period has been prescribed u/s 13B (2) of the Hindu Marriage Act. As per this provision, a couple seeking divorcee with mutual consent has to first establish a 12-month separation period, followed by a 6 months "cooling-off" period.

The Apex Court has already held in 2017 [in Amardeep Singh v. Harveen Kaur], that the period under Section 13-B(2) is not mandatory but only directory.

The case in brief 

The petitioner moved the High Court under Articles 14, 226, and 227 of the Constitution of India challenging the order passed by the Principal Judge, Family Court, Ahmedabad dismissing an Application filed praying to waive the cooling period of 6 months in divorce proceedings.

The marriage between the Petitioners was solemnized on December 8, 2020, as per Hindu rites and customs, but due to differences arising between the Petitioners, the Petitioners started living separately 12 days after the marriage was solemnized.

When all efforts for reconciliation failed, the parties, with mutual consent, filed a Hindu Marriage Petition before the Family Court at Ahmedabad.

Both the Petitioners also entered into a Memorandum of Understanding ('MoU') for mutual divorce and that as per the said MoU, the Petitioners agreed to withdraw all the criminal cases filed against each other.

The Family Judge firstly sent the Petitioners for mediation, however, the same failed, and thereafter, the Petitioners submitted an Application for waiving of the cooling period of six months, when the same was rejected, they moved the High Court with the instant plea. 

The petitioner primarily relied upon the ruling in the case of Amit Kumar vs Suman Beniwal Civil Appeal No. 7650 of 2021, wherein the Apex Court had waived off the statutory period of six months by exercising its power under Article 142 of the Constitution of India.

Court's order

Finding no illegality in the order of the Family Court, the High Court said that the petition had been filed by the petitioner under Article 227 of the Constitution of India and that the exercise of powers under such Article is imperatively spare.

Further, the Court also observed that the Family Court, Ahmedabad rightly considered that in the Suman Beniwal case, the Apex Court had exercised its power under Article 142 of the Constitution of India to waive off the statutory period of six months and that the Principal Judge, Family Court Ahmedabad has no power to exercise such power under Article 142 of Constitution of India.

In the aforesaid factual scenario, this Court, while being in complete agreement with the findings recorded by the Principal Judge, Family Court, Ahmedabad, held that there was no reason to interfere with the order passed by it the court below.

Case title - SUJAL JAYANTIBHAI MAYATRA Versus NA
Case Citation: 2022 LiveLaw (Guj) 4

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