Time-period of six months for cooling off u/S 13-B of HMA can be waived by the Court under special circumstances: Delhi High Court

In the matter concerned with mutual divorce u/S 13-B of the Hindu Marriage Act, 1956, the Delhi High Court bench constituting Pratibha M. Singh J. opined that in light of undue delay in passing of motion by the Family Court, the six month time period for cooling off may be waivered. The present matter in Kavita Malik v State of NCT [W.P.(C) 3922/2021] of Delhi arose out of delay in due course of the pandemic.

The present petition has been filed by Ms. Kavita Malik, who was married to Mr. Amit Malik on 8th February, 1997. Due to various reasons, the parties did not wish to continue with the marriage and accordingly, they agreed for dissolution of their marriage by mutual consent. The grievance of the Petitioner is that she is a 45 year old lady who had entered into a Memorandum of Understanding with her husband and the various terms and conditions which were to be abided by the parties were given effect to. Both parties are living separately since 2nd June, 2018 but are being forced to continue their marriage. All future plans of the parties have been put on hold and these facts have not been appreciated by the Family Court which has acted with complete callousness in not recording the order on the first motion On the basis of this understanding, the parties through their counsels filed. On 17th November, 2020, the Petitioner moved an application seeking waiver of the cooling-off period of six months.

This Court has perused the judgment of the Supreme Court in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 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 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. The judgment in Devinder Singh Narula v. Meenakshi Nangia, (2012) 8 SCC 580 was also referred to wherein Section 13-B itself provides for a cooling-off period of six months on the first motion being moved, in the event the parties change their minds during the said period. Accordingly, after the initial motion and the presentation of the petition for mutual divorce, the parties are required to wait for a period of six months before the second motion can be moved, and at that point of time, if the parties have made up their minds that they would be unable to live together, the court, after making such inquiry as it may consider fit, grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

The court held that “There is thus no reason as to why the Family Court did not pass orders on the first motion after recording the statements of the parties and after the physically signed copy was placed on record. Simply adjourning the matter on the said date i.e., 20th July, 2020, without passing orders on the first motion has resulted in turning the clock back for the Petitioner. 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.”

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