The Gujarat High Court has quashed the order of the family court, Ahmedabad, which had rejected the petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955, observing that the six-month cooling-off period is directory and the petition could not have been dismissed merely for non-filing of a formal waiver application.
The appeal arose from the family court order rejecting the joint petition on the ground that no application seeking waiver of the six-month cooling-off period under Section 13B was filed, which is necessary. This led to appeal before the High Court.
Allowing the appeal, the division bench of Justice Sangeeta K. Vishen and Justice Nisha M. Thakore noted that it is well settled that the six-month cooling-off period under Section 13B(2) is directory and not mandatory, as held by the Supreme Court in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.
The court has restored the proceedings, permitting the parties to seek waiver of the cooling-off period in accordance with Section 13B of the Hindu Marriage Act.
Noting that there were no possibility of reconciliation since they are staying separately since more than one year and both parties voluntarily agreed to dissolve the marriage, the court held that a rigid procedural approach would only prolong their agony.
Accordingly, the High Court restored the Family Suit to its original file and granted liberty to the parties to file an application seeking waiver of the cooling-off period. It directed the Family Court to consider the matter afresh, in accordance with law, uninfluenced by its earlier order, and to decide the proceedings expeditiously.
Appearance:
Advocate Pooja D Baswal for the appellant
Advocate MS Bhakti M Joshi for the defendant
