Case Note & Summary
The petitioners, a husband and wife, jointly filed a writ petition challenging an order dated 13-2-2017 passed by the Family Court, Akola, rejecting their application (Exhibit 9) for waiver of the six-month statutory period under Section 13B(2) of the Hindu Marriage Act, 1955, for granting a decree of divorce by mutual consent. The marriage was solemnized on 30-4-2012, and the parties had been living separately since 25-2-2014. They had two minor daughters, who were residing with the husband from 13-10-2015. The divorce petition was filed on 29-11-2016. The Family Court rejected the waiver application on three grounds: (i) the law does not provide for waiver of the statutory period; (ii) there was no prior litigation between the parties to avail the benefit of pendency; and (iii) the real reason for seeking waiver was the husband's desire to remarry. The High Court, relying on the Division Bench decision in Mittal Ramesh Panchal v. Nil, 2014(3) Mh.L.J. 755, held that the statutory period of six months under Section 13B(2) is not rigid and can be waived in exceptional circumstances to do substantial justice. The Court observed that the provision should be interpreted liberally to effectuate the object of liberalizing divorce, and technical difficulties should not come in the way of imparting justice. The High Court set aside the impugned order and directed the Family Court to decide the waiver application afresh, considering the totality of circumstances, including the fact that the parties had been living separately for over three years and had settled terms. The petition was allowed, and rule was made absolute.
Headnote
A) Family Law - Mutual Consent Divorce - Waiver of Statutory Cooling-Off Period - Section 13B(2) Hindu Marriage Act, 1955 - The Family Court rejected the waiver application on grounds that law does not provide for waiver, no prior litigation, and husband's desire to remarry. The High Court held that the statutory period can be waived in exceptional circumstances to do substantial justice, relying on Mittal Ramesh Panchal v. Nil, 2014(3) Mh.L.J. 755, which held that the period is not rigid and can be read as waivable to liberalize divorce. The Court set aside the order and directed the Family Court to decide the waiver application afresh considering the totality of circumstances. (Paras 2-5) B) Family Law - Mutual Consent Divorce - Liberal Interpretation of Section 13B - Section 13B Hindu Marriage Act, 1955 - The High Court emphasized that the provision for mutual consent divorce should be interpreted liberally to effectuate its object of liberalizing divorce, and technicalities should not prevent the court from doing justice. The Family Court's rigid approach was disapproved. (Paras 4-5)
Issue of Consideration
Whether the Family Court can waive the six-month statutory period under Section 13B(2) of the Hindu Marriage Act, 1955 for passing a decree of divorce by mutual consent, and whether the reasons given by the Family Court for rejecting such waiver are sustainable.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 13-2-2017 passed by the Family Court, Akola, and directed the Family Court to decide the application for waiver of six months' period (Exhibit 9) afresh, considering the totality of circumstances and the law laid down in Mittal Ramesh Panchal v. Nil. Rule made absolute.
Law Points
- Waiver of statutory cooling-off period under Section 13B(2) of Hindu Marriage Act
- 1955 is permissible in exceptional circumstances
- Liberal interpretation of divorce provisions to effectuate object of liberalizing divorce
- Courts can overcome technical difficulties to do justice between parties
