Recently, an appeal was filed in the Gujarat High Court against the order of the family court, which refused to waive off the 6 month cooling period, as envisaged under sec 13(b) of the Hindu Marriage Act,1955. A couple seeking a divorce by mutual consent must first adopt a 12-month separation period, followed by a 6-month “cooling off,” period according to this provision.
The petitioner appealed under articles 14, 226, and 227 of the Constitution of India, challenging the order passed by the Principal Judge, Family Court, Ahmedabad which dismissed their application filed, seeking to waive the cooling period of 6 months in divorce proceedings. The marriage took place between the petitioners as per the Hindu rites and customs but due to some differences between the couple, their marriage lasted long for twelve days only and they started living separately afterward. Both had filed criminal cases against each other which they withdrew through a memorandum of understanding against each other. When their reconciliation efforts failed, they filed for divorce with mutual consent.
The Petitioners’ submitted before the court that the marriage between the couple is irretrievably broken down due to irreconcilable differences and all attempts to save the marriage have been vain, including mediation, have failed. The Petitioners are unwilling to live together as husband and wife even after more than 12 months of separation. There is no chance of resuming the matrimonial relationship. The Petitioners have genuinely settled all their issues amicably and even decided about the permanent alimony as well.
The petitioners heavily relied upon the case of Amit Kumar v.Suman Beniwals where the Supreme Court had waived off the statutory period of 6 months under Article 142. The factors to be considered to waive off the cooling period include the time for which the parties have stayed together, as husband and wife, the possibility of reconciliation, children born out of wedlock concerned, pending litigation between the parties, any other proceedings, time for which they have stayed apart, and whether parties have freely on their accord without any coercion, which has also taken care of their custody of children, alimony and maintenance.
The Gujarat High Court agreed with the family court’s order that it has no power and cannot exercise such powers under article 142 of the constitution of India to waive off cooling period, whereas the current petition has been filed under Article 227 of the Constitution and that the exercise of powers under such Article is imperatively spare. It cannot interfere with the family court’s order and is in complete agreement with their order.
Case Name: SUJAL JAYANTIBHAI MAYATRA Vs. NA
