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The cooling off period in mutual consent divorce can be waived by the Court under special circumstances: High Court of Delhi

The divorce, being one of mutual consent, the parties cannot be put to such grave inconvenience due to the action of the Family Court which has failed to pass orders on the first motion. This was held in KAVITA MALIK v. STATE OF NCT OF DELHI[W.P.(C) 3922/2021 & CM APPL. 11792/2021] in the High Court of Delhi by the single bench consisting of JUSTICE PRATHIBA M. SINGH.

Facts are that the petitioner had filed the first motion petition for divorce by mutual consent owing to the lockdown, physical hearing was not held. The statements of the parties were recorded and the order was passed to file the physically signed copies of the statements. The physical copies were filed within a period of two days duly verified by the respective counsels for the parties and no intimation was given by the Court that the first motion is not passed, all parties were under the impression that the order on the first motion was passed. When the second motion was taken up and objections were raised by the Court that the certified copy of the order on the first motion was not filed. Thus the current petition has been filed.

The counsel for the petitioner contended the order specifically recorded that the joint statement of the Petitioners had been recorded. The physical record also has signed copies of the statements by both parties, duly verified by both the counsels for the parties as well. There is no explanation as to why the order on the first motion considering the fact that the physical copy of their statement was already signed. The said order has never been passed even after almost 8 months delay, the parties had moved for waiver of the cooling-off period, which too could not happen.

The Court made reference to the judgment of Apex court in  Amardeep Singh v. Harveen Kaur., wherein the court had observed that Applying the above to the present situation, 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 13-B(1) of separation of parties is already over before the first motion itself;…(iii) the parties have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties.

The Court also made reference to the judgment of Apex court in Devinder Singh Narula v. Meenakshi Nangia, wherein the court observed that “It is only on account of the statutory cooling off period of six months that the parties have to wait for a decree of dissolution of marriage to be passed.”

Considering the law and the facts of the case the court held that, in the present case, the parties were living apart from 2018 and had also settled their disputes. The court directed the family court to pass an order of second motion once the order on the first motion, which shall date back to 20th July 2020, is passed by the present Presiding Officer. Thus disposing of the petition.

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