Madras HC | Husband and Wife living separately for past 13 years. Can cooling-off period under S. 13-B of Hindu Marriage Act, 1955 be waived off, if sought mutually ? Read on

Madras High Court: J. Nisha Banu, J., while addressing a revision petition directed the Family Court to waive off the cooling-off period in view of the petitioners living separately for the past 13 years.

The instant petition was filed to seek direction to waive off the cooling period.

The revision petitioners had preferred the petition on the file of the Family Court under Section 13-B of the Hindu Marriage Act, 1955. Husband and Wife had been living separately for 13 years and mutually agreed to dissolve their marriage.

The grievance that arose was that, since they had been living separately for the past 13 years, the family Court ought to have disposed of the petition. Hence, petitioners are constrained to move the present revision petition before the Court for granting speedy disposal of the petition.

Revision petitioners’ counsel while narrating the facts of the matter, relied upon the decision of the Supreme Court in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, wherein it was held that:

18. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. ….

… 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 13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section 13B(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.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

  1. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

Hence, High Court concluded in the present matter that since the petitioners had been separated for the past 13 years and had entered into a compromise along with this in view of the above-referred decision, Family Court shall waive the cooling period and dispose of the petition.[Jaishankar, In Re., 2021 SCC OnLine Mad 708, decided on 01-02-2021]

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