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Cooling off period is not mandatory under S.13B of HMA : MP High Court Observation

Marriage
CONJUGAL RIGHTS
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The cooling off period of six months mentioned under Section 13B of the Hindu Marriage Act for obtaining a decree of divorce on the basis of mutual consent, was recently waived off by the Madhya Pradesh High Court.

After taking note of the apex court judgment in in Amardeep Singh vs. Harveen Kaur, the order passed by Justice SA Dharmadhikari stated,

Taking into consideration the fact that there is a dispute between the parties since long and now the parties have amicably settled the matter and decided to live separately and there are no chances of any settlement between them, therefore, the cooling period of six months’ as provided under Section 13-B of the HMA is waived off…”

The single-judge was hearing a challenge to an order of Family Court, Gwalior that rejected the parties’ application seeking waiver of the cooling off period in light of Amardeep Singh.

The couple had stated that since they have decided to live separately, the pendency of the petition for more than six months would affect both their futures.

The petitioner submitted that after the marriage between the parties was unsuccessful, they jointly decided to obtain a decree of divorce and therefore, sought divorce by mutual consent. It was further stated that since they had decided to live separately, the pendency of the petition for more than six months would affect both their futures. It was also clarified that there was no possibility of compromise between the parties.

Before deciding on the challenge, the Court discussed the judgment of the Supreme Court in Amardeep Singh. In that case, it was held,

Applying the above to the present petition, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13 B (2), it can do so after considering the following:

i) The statutory period of six months specified in Section 13 B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties.

iv) The waiting period will only prolong their agony.

In view of the above judgment passed by the Hon’ble Supreme and taking into consideration the fact that there is a dispute between the parties since long and now the parties have amicably settled the matter and decided to live separately and there are no chances of any settlement between them, therefore, the cooling period of six months’ as provided under Section 13-B of the HMA is waived off and the matter is directed to be placed before the Family Court on 25.10.2021.

Considering the judgment and the stand of the parties, Justice Dharmadhikari waived off the cooling period of six months. The High Court also directed the Family Court to consider and decide the application expeditiously.

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