Case Note & Summary
The petitioner-husband and respondent-wife, an estranged couple, filed a mutual consent petition under Section 13B of the Hindu Marriage Act, 1955 for dissolution of their marriage solemnized on 05.07.2018. They also filed an application under Section 13B(2) to waive the statutory cooling period of six months for early disposal. The V Additional Principal Judge, Family Court, Bengaluru, vide order dated 14.01.2020, dismissed the application and directed the petitioner to deposit Rs.5,000/- as cost in the Registry, to be remitted to the State Treasury. Aggrieved, the petitioner approached the High Court under Article 227 of the Constitution. The High Court observed that the Family Court's order imposing cost was without jurisdiction as the court cannot impose a monetary condition for exercising a statutory right under Section 13B(2). The discretion to waive the cooling period must be exercised judicially based on the facts of the case, not by imposing costs. The High Court quashed the impugned order and remitted the matter back to the Family Court for fresh consideration of the application for waiver of the cooling period, without imposing any cost. Notice to the respondent-wife was dispensed with as she was not likely to be adversely affected.
Headnote
A) Family Law - Mutual Consent Divorce - Waiver of Cooling Period - Section 13B(2) Hindu Marriage Act, 1955 - The Family Court dismissed the application for waiver of the six-month cooling period and directed the petitioner to deposit Rs.5,000/- cost. The High Court held that the court cannot impose a monetary condition for exercising a statutory right under Section 13B(2) and that the discretion to waive the period must be exercised judicially without imposing costs. The impugned order was quashed and the matter remitted for fresh consideration. (Paras 1-4)
Issue of Consideration
Whether the Family Court can impose a cost of Rs.5,000/- as a condition for waiving the statutory cooling period under Section 13B(2) of the Hindu Marriage Act, 1955?
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 14.01.2020, and remitted the matter back to the Family Court for fresh consideration of the application for waiver of the cooling period under Section 13B(2) of the Hindu Marriage Act, 1955, without imposing any cost.
Law Points
- Section 13B(2) of Hindu Marriage Act
- 1955
- waiver of cooling period
- mutual consent divorce
- imposition of cost
- Article 227 of Constitution of India
Case Details
2020 LawText (KAR) (07) 217
Writ Petition No. 8503 of 2020 (GM-FC)
Sri. Kaushik Kumar P Jain
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Nature of Litigation
Writ petition under Article 227 of the Constitution challenging the order of the Family Court imposing cost for waiving the cooling period in a mutual consent divorce petition.
Remedy Sought
Quashing of the order dated 14.01.2020 passed by the V Additional Principal Judge, Family Court, Bengaluru in M.C.No.5314/2019 and dismissal of the IA filed under Section 13B(2) of the Hindu Marriage Act, 1955.
Filing Reason
The Family Court dismissed the application for waiver of the statutory cooling period and directed the petitioner to deposit Rs.5,000/- as cost.
Previous Decisions
The Family Court vide order dated 14.01.2020 dismissed the application for waiver of cooling period and imposed cost of Rs.5,000/-.
Issues
Whether the Family Court can impose a cost of Rs.5,000/- as a condition for waiving the statutory cooling period under Section 13B(2) of the Hindu Marriage Act, 1955?
Submissions/Arguments
The petitioner argued that the Family Court erred in imposing cost for waiving the cooling period, as the discretion under Section 13B(2) must be exercised judicially without monetary conditions.
Ratio Decidendi
The court cannot impose a monetary condition for exercising a statutory right under Section 13B(2) of the Hindu Marriage Act, 1955. The discretion to waive the cooling period must be exercised judicially based on the facts of the case, not by imposing costs.
Judgment Excerpts
The learned V Addl. Principal Judge, Family Court, Bengaluru, vide order dated 14.01.2020 ... having dismissed the subject application directed the petitioner to deposit a cost of Rs.5,000/- in the Registry of the Court, within one month and that the said amount is directed to be remitted to the State Treasury.
Being aggrieved by the impugned order, which disappointed the parties from having their case considered in a fast track, this petition is presented.
Procedural History
The petitioner and respondent filed M.C.No.5314/2019 under Section 13B of the Hindu Marriage Act, 1955 for mutual consent divorce. They also filed an IA under Section 13B(2) for waiver of the cooling period. The Family Court dismissed the IA and imposed cost of Rs.5,000/- on 14.01.2020. The petitioner filed the present writ petition under Article 227 of the Constitution on an unspecified date. The High Court allowed the petition on 01.07.2020.
Acts & Sections
- Hindu Marriage Act, 1955: Section 13B, Section 13B(2)
- Constitution of India: Article 227
