Hi, the application for waiver of cooling period can be filed after first motion, however it depends totally upon the court discretion wether to allow the application or not .. Under special circumstances , the court may allow the application, but it is done only in exceptional cases , so that it does not become a regular practice of waiving of cooling Period

Yes the family court in Chennai, TamilNadu nowadays considered the waiver petition if the marriage life is irretrievably brokedown.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

FAO(HMA) No. 359 of 2017

Decided On: 10.10.2017

Appellants: Priyanka Kaushik

Vs.

Respondent: Nikhil Sharma

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Sudhir Thakur, Advocate

For Respondents/Defendant: Vinay Kuthiala, Senior Advocate and Diwan Singh Negi, Advocate

Subject: Family

Acts/Rules/Orders:

Code of Civil Procedure, 1908 (CPC) - Order XXXIIA Rule 3; Code of Civil Procedure, 1908 (CPC) - Section 151; Hindu Marriage Act, 1955 - Section 13, Hindu Marriage Act, 1955 - Section 13(1)(a), Hindu Marriage Act, 1955 - Section 13(B)2, Hindu Marriage Act, 1955 - Section 13-B, Hindu Marriage Act, 1955 - Section 13B, Hindu Marriage Act, 1955 - Section 13B(1), Hindu Marriage Act, 1955 - Section 13B(2), Hindu Marriage Act, 1955 - Section 23(2), Hindu Marriage Act, 1955 - Section 28

Cases Referred:

Veena vs. State Govt. of NCT, Delhi and Anr. MANU/SC/0511/2011; Priyanka Khanna vs. Amit Khanna and Anr. MANU/SC/1564/2011; K. Omprakash vs. K. Nalini MANU/AP/0119/1986; Krishna Preetha vs. Jayan Moorkkanatt MANU/KE/0351/2010; Kailash vs. Nanhku and Ors. MANU/SC/0264/2005

Disposition:

Disposed off

JUDGMENT

Sandeep Sharma, J.

1. Appellant being aggrieved and dissatisfied with the judgment dated 07.07.2017, passed by learned Additional District Judge-II, Solan, District Solan, H.P., in HMA Petition No. 33ADJ-II/3 of 2015, whereby petition having been filed by the appellant under Section 13 of Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce, came to be dismissed, has approached this Court by way of instant appeal filed under Section 28 of the Hindu Marriage Act, 1955, praying therein for decree of divorce after setting aside the judgment dated 07.07.2015, passed by the learned Additional District Judge-II, Solan, District Solan, H.P.

2. Facts, in brief as emerge from the record are that the marriage of appellant and respondent was solemnized on 28.06.2012, according to Hindu rites and customs at Hotel Paragon Place, Solan, District Solan, H.P., and no issue was born out of their wedlock. Since, the parties were not able to live peacefully and cordially with each other after the marriage for various reasons, which have been enumerated in the petition filed before the learned Court below, appellant by way of petition filed under Section 13 of Hindu Marriage Act, 1955, sought dissolution of marriage by way of decree of divorce. However, fact remains that aforesaid petition having been filed by the appellant, came to be dismissed.

3. On 12.09.2017, when this matter came up for admission, this Court having regard to the nature of the litigation pending inter se the parties, summoned both the parties in the Court, so that possibility, if any, of amicable settlement inter se parties is explored. Vide aforesaid order, this Court directed both the parties to remain present in Court on 10th October, 2017.

4. Today i.e. 10.10.2017, during the proceedings of the case, this Court made sincere and serious attempt to ensure reconciliation between the parties, but unfortunately appellant, who initiated proceedings against the respondent, expressed her unwillingness to join the company of the respondent, who admittedly stated before this Court that he is ready and willing to take the appellant back to her matrimonial house. This Court in the presence of learned counsel representing the parties, made both the parties understand the consequences of prolonged litigation as well as their having settled the matter amicably inter se them. But this Court after having interacted with both the parties sees no possibility of reconciliation/rapprochement between the parties. It may be noticed that during the proceedings of the case, this Court solely with a view to give some more time to the parties to reconsider their decision adjourned the matter for post lunch session but in vain. However, later on learned counsel representing the parties, informed this Court that parties have mutually agreed to get their marriage dissolved by way of mutual consent and in this regard they filed an application under section 151 of Code of Civil Procedure, praying therein, for converting the divorce petition under Section 13 of the Hindu Marriage Act into the divorce petition under Section 13-B of the Hindu Marriage Act. Besides above, parties also filed joint petition under Section 13-B of the Hindu Marriage Act, for dissolution of marriage by way of mutual consent.

5. In the aforesaid joint petition filed under Section 13-B of the Hindu Marriage Act, parties while praying for dissolution of their marriage by way of mutual consent have averred that marriage between them could not last long and due to the circumstances prevailing between the parties, they got separated from each other w.e.f. 28.11.2014 and thereafter they are living separately and have no relationship. Parties also averred in the petition, referred above, that marriage between them has irrevocably broken down and same has virtually come to an end emotionally and physically and there is no scope of cohabitation in future, hence, with the intervention of the relatives and friends, they have decided to dissolve their marriage by way of mutual consent. Both the parties have also stated in their petition that as per the agreement entered between them, the respondent shall pay lump sum maintenance of ` 5.00 lakh to the appellant in token of final settlement of his claim of maintenance and as such, after making aforesaid payment, respondent shall have no liability of any sort towards the appellant. Similarly, appellant shall withdraw all the cases pending in any Court of law against the respondent and shall also withdraw appeal under Domestic Violence Act, pending before this Court in terms of aforesaid agreement arrived inter se the parties. Now onward relationship of wife and husband between the parties has come to an end and they are now free to live their life independently without any interference from each other.

6. This Court solely view a view to ascertain the correctness and genuineness of the submissions having been made by learned counsel for the parties as well as averments contained in the joint petition filed under Section 13-B of the Hindu Marriage Act, also recorded the statements of both the parties on oath, who categorically stated before this Court that they have entered into compromise with their own volition and without there being any external pressure, whereby they have decided to dissolve their marriage by way of mutual consent. Their statements are taken on record alongwith aforesaid application. Registry is directed to assign number to the application.

7. Appellant namely Priyanka Kaushik, stated on oath before this Court that she has agreed to receive ` 5.00 Lakh as full and final alimony, in terms of the aforesaid settlement, out of which ` 2:00 Lakh shall be paid within a period of one week and ` 3:00 lakh within a period of three months thereafter. She categorically stated before this Court that she has no objection in case decree of divorce by way of mutual consent is passed and she shall withdraw all the cases against the respondent pending in any court of law including this Court.

8. Similarly, respondent namely Nikhil Sharma stated before this Court that he has agreed to pay ` 5.00 lakh to the appellant as full and final settlement for divorce, out of which ` 2.00 lakh shall be paid to the appellant within a period of one week and ` 3.00 lakh within three months thereafter and he will also withdraw his claim, if any, filed against the appellant pertaining to matrimonial dispute.

9. After having taken note of aforesaid averments contained in the application, jointly moved by the parties, as well as their statements recorded on oath, this court sees no possibility of rapprochement/reconciliation inter se parties and as such, this Court sees no impediment in accepting the joint request/prayer having been made on behalf of the parties for decree of divorce by way of mutual consent. Since, both the parties have jointly prayed before this Court that the petition under Section 13 of the Hindu Marriage Act, may be converted into petition under Section 13-B of the Hindu Marriage Act, as they have mutually agreed to dissolve the marriage, the divorce petition filed under Section 13 of the Hindu Marriage Act, is ordered to be converted into petition under Section 13-B of the Hindu Marriage Act. Since, the parties are living separately since 2014 i.e. approximately for the last three years and they have been litigating since 2015, statutory period of six months as envisaged under Section 13-B of the Act, for granting decree by mutual consent can be waived, especially when there is no possibility of rapprochement between the parties and marriage has broken beyond repair. In this regard, it would be apt to take note of the judgment rendered by the Hon'ble Apex Court in Veena v. State (Government of NCT of Delhi) and another, MANU/SC/0511/2011 : (2011)14 SCC 614, wherein the Hon'ble Apex Court has held as under:-

"We have heard the learned counsel for the parties and talked to the parties. The appellant has filed a divorce petition under Section 13(1)(a) of the Hindu Marriage Act, 1955, being HMA No. 397/2008 which is pending before the Court of Sanjeev Mattu, Additional District Judge, Karkardooma Courts, Delhi. In the peculiar facts and circumstances of this case, we deem it appropriate to transfer the said divorce petition to this Court and take the same on Board. The said petition is converted into one under Section 13B of the Hindu Marriage Act and we grant divorce to the parties by mutual consent."

10. However, in the present case, the parties are in appeal before this Court, as such, prayer of the parties to convert the petition under Section 13 of the Hindu Marriage Act into under Section 13-B of the Hindu Marriage Act, is required to be considered accordingly. Otherwise also, it is quite evident from the record that the parties are not living together since 2014 i.e. for the last three years. Moreover, this Court after having interacted with the parties, sees no possibility of reconciliation inter se parties, as such, no fruitful purpose would be served in case the matter is kept pending for another six months before passing decree of divorce by mutual consent.

11. Hon'ble Apex Court in Priyanka Khanna v. Amit Khanna, MANU/SC/1564/2011 : (2011) 15 SCC 612, has further held as under:-

"7. We also see form the trend of the litigations pending between the parties that the relationship between the couple has broken down in a very nasty manner and there is absolutely no possibility of a rapprochement between them even if the matter was to be adjourned for a period of six months as stipulated under Section 13-B of the Hindu Marriage Act.

8. We also see from the record that the first litigation had been filed by the respondent husband on 2.6.2006 and a petition for divorce had also been filed by him in the year, 2007. We therefore, feel that it would be in the interest of justice that the period of six months should be waived in view of the above facts."

12. In the instant case also, statutory period of six months deserves to be waived keeping in view the fact that the marriage between the parties has broken beyond repair and there seems to be no possibility of parties living together. The Hon'ble Apex Court in Civil Appeal No. 11158 of 2017 [arising out of Special Leave Petition (Civil) No. 20184 of 2017] titled as Amardeep Singh v. Harveen Kaur, decided on 12.09.2017, has held as under:-

"13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash v. K. Nalini, Karnataka High Court in Roopa Reddy v. Prabhakar Reddy, Delhi High Court in Dhanjit Vadra v. Smt. Beena Vadra and Madhya Pradesh High Court in Dinesh Kumar Shukla v. Smt. Neeta. Contrary view has been taken by Kerala High Court in M. Krishna Preetha v. Dr. Jayan MANU/AP/0119/1986 : AIR 1986 AP 167 (DB) : 11 AIR 1994 Kar 12 (DB) : 12 AIR 1990 Del 146 : 13 AIR 2005 MP 106 (DB) Moorkkanatt. It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:

i) How long parties have been married?

ii) How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/conciliation?

vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

14 MANU/KE/0351/2010 : AIR 2010 Ker 157

14. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

17. 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. This principle, as formulated in Justice G.P. Singh's "Principles of Statutory Interpretation" (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors. as follows:

15 MANU/SC/0264/2005 : (2005) 4 SCC 480 "The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: 'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.' " 'For ascertaining the real intention of the legislature', points out Subbarao, J. 'the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered'. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory."

18. 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 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.

19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

20. 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.

21. 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."

13. Consequently, in view of detailed discussion made hereinabove, CMP No. 9050 of 2017 filed under Section 151 Code of Civil Procedure as also CMP No. 9051 of 2017, filed under Section 13-B of Hindu Marriage Act is allowed and divorce petition filed by appellant Section 13 of the Act, is converted into petition under Section 13-B of the Hindu Marriage Act, and in view of the peculiar facts and circumstances, as enumerated hereinabove, as well as law down by the Hon'ble Apex Court, the marriage between the parties is ordered to be dissolved by way of mutual consent. Registry is directed to draw a decree of dissolution of marriage by mutual consent accordingly.

14. Needless to say, both the parties shall abide by terms and conditions contained in the compromise and all the cases pending before the Court(s) below shall be withdrawn by the parties, immediately, in terms of the compromise. Apart from above, Mr. Nikhil Sharma, shall make payment qua the alimony i.e. Rs. 5:00 lakh, as agreed by him within the time frame as stipulated in the joint petition filed under Section 13-B of the Hindu Marriage Act, failing which he shall render himself liable for penal consequences as well as contempt of the Court.

15. The instant appeal is disposed of in the aforesaid terms. Pending applications, if any, are also disposed off.

based on SC judgment family court can waive off the cooling period on application made by parties after period of one week after the first motion

Thw aiver of the cooling off perios is amde discretionaly on the aort of the court.

So it is no more right of the aprties to wave this period.

if the parties satisfies the court behind their application for waiver then only the six months time will be waived.

Else six months will continue to govern the field.

It is a 6 month cooling off period.

However if you want the same to be waived off in light of the SC judgement, application has to be moved showing the reason that it is an irrevocable break down of marriage.

This judgement has been hollowed by one of the Family Court of Bombay wherein the cooling off period was waived off for a couple.

Regards

Dear Client,

Waiver of period will granted depending on facts and circumstances of particular case and on the face of it, it exits that no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation and all the efforts to save the marriage has been failed, than possilbe,

Wahst ur excuete.

Following this direction, have any High Courts or Family Courts waived the period? Please provide citations

The lower court decisions are not reported in any journal hence they cannot be called as citations.

The supreme court decision is very clear hence no lower court can refuse to enforce the decided law for any reason.