Statutory period under Section 13(B)(ii) of the Hindu Marriage Act may be waived under permissible circumstances: Bombay High Court

Statutory requirement of the husband and wife living separately for one year immediately preceding the presentation of divorce petition may be waived as per the discretion of Court, held, a single-judge bench of Justice Sandeep K Shinde, while adjudicating the matter in Pritam Vijaykumar Dargad v. Sujata Pritam Dargad; [Writ Petition No. 5822 / 2021].

The parties to the petition, are husband and wife, whose marriage was solemnized on 22nd April, 2015. Their temperament seldom matched. Resultantly, wife had instituted the proceedings under Section 125 of the Code of Criminal Procedure, 1973; and under Domestic Violence Act, 2005. She withdrew both the proceedings. Husband had fled a petition under Section 9 of Hindu Marriage Act. It was decreed in November, 2018. The Prosecution launched against the husband under Section 498-A of the Indian Penal Code, 1860, also has been settled. As on today, no matrimonial disputes or any proceedings arising therefrom, are pending against each other. On 4th February, 2021, parties to this petition, instituted the petition for dissolution of marriage by mutual consent. In consideration of the facts of the case, an application was moved for waiving cooling period for six months. The learned Civil Judge, Senior Division, Gangakhed, rejected the application only on the ground that eforts were not made for mediation to reunite the parties.

The learned trial Court relied on the judgment of the Hon’ble Apex Court in the case of Amardeep Singh Vs. Harveen Kaur. The Hon’ble Apex Court in the cited judgment said that, where Court dealing with the matter, if a case is made out to waive statutory period under Section 13-B(2), it can do so after considering the following: “(i) statutory period of six months specified S.13-B(2), in addition to statutory period of one year under S. 13-B(1) of separation of parties is already over before first motion itself; (ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA, Rule 3, CPC/S. 23(2) of the Act/ S.9 of Family Courts Act to reunite parties have failed and there is no likelihood of success in that direction by any further efforts; (iii) parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (v) waiting period will only prolong their agony.”

The Court upon considering the aforesaid facts allowed the petition and stated that; “In the case of Amardeep, the Hon’ble Apex Court has held that the period mentioned in Section 13-B(2) is mandatory but directory and therefore in exercise of the discretion in the facts and circumstances of the case, in my opinion, there is no possibility of parties resuming cohabitation. In consideration of the facts aforesaid, statutory period, contemplated under Section 13-B(2) of the Hindu Marriage Act, is waived.”

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